Potentially meritorious defense [CPLR 5015]

Lai v Montes, 2020 NY Slip Op 02134 [3d Dept. 2020]

Moreover, defendants have proffered several defenses that are potentially meritorious based upon their verified answer and affidavits in support of the motion to vacate the default judgment (see Global Liberty Ins. Co. v Shahid Mian, M.D., P.C., 172 AD3d 1332, 1333 [2019]; Luderowski v Sexton, 152 AD3d 918, 918 [2017]). “To establish the existence of a potentially meritorious defense, defendants needed only to make a prima facie showing of legal merit, as the quantum of proof needed to prevail on a CPLR 5015 (a) (1) motion is less than that required when opposing a summary judgment motion” (Luderowski v Sexton, 152 AD3d at 920 [internal quotation marks and citations omitted]). Defendants’ affidavits of merit indicate that plaintiffs breached the contract by misrepresenting that the dog was an “AKC [registerable] purebred English bulldog . . . that would be suitable for breeding or showing” when it is not suitable for same due to certain genetic defects. As a result, defendants claim that they were not unjustly enriched, as alleged in the complaint. Defendants also assert that the allegedly defamatory statements are true, an “absolute defense” provided they are “substantially true” (Hope v Hadley-Luzerne Pub. Lib., 169 AD3d 1276, 1277 [2019] [internal quotation marks and citations omitted]; see Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149, 1151 [2012], lv denied 19 NY3d 801 [2012]). Further, defendants served an answer with numerous affirmative defenses and participated in depositions,[FN3] “indicat[ing] that they had no intention of abandoning their defense[s]” (Luderowski v Sexton, 152 AD3d at 920-921).

While these defenses may ultimately prove to be unsuccessful, we find that they are potentially meritorious so as to satisfy CPLR 5015 (a) (1), in that they “suffice to make the requisite prima facie showing of merit” (Luderowski v Sexton, 152 AD3d at 921; see Matter of Santander Consumer USA, Inc. v Kobi Auto Collision & Paint Ctr., Inc., 166 AD3d at 1366; Passeri v Tomlins, 141 AD3d 816, 818-819 [2016]). “Under these circumstances, and considering the strong public policy favoring the resolution of cases upon their merits” (Matter of Walker v Buttermann, 164 AD3d 1081, 1082-1083 [2018] [citations omitted]), we find that defendants’ motion to vacate the default judgment should have been granted. Accordingly, the final order issued following the inquest must be reversed and defendants’ remaining contentions addressed to the inquest have been rendered academic.

Bold is mine.

Common interest privilege

Scott v Thayer, 2018 NY Slip Op 02524 [3d Dept. 2018]

Although plaintiff alleged that Thayer made numerous defamatory statements, the only one relevant to this appeal is a statement that Thayer purportedly made to Anthony Posca — a doctor who treated decedent at Albany Memorial Hospital — that "[plaintiff] . . . was very abusive to [decedent], would not take [her] anywhere for checkups, would not let Adult Protective Services or other aides into the house, . . . and that [plaintiff] would not allow [decedent] to be place[d] anywhere." Supreme Court granted Thayer's motion pursuant to CPLR 3211 (c) and dismissed the amended complaint against her finding, in relevant part, that the statement that she allegedly made to Posca was protected by the qualified common interest privilege and that plaintiff had not tendered evidence of malice sufficient to defeat the privilege. Thereafter, Supreme Court denied plaintiff's subsequent motion for leave to renew his opposition to Thayer's motion to provide evidence of malice. Plaintiff now appeals from the order granting defendant's motion for summary judgment and from the order denying his motion to renew.

Supreme Court properly determined that the statement that Thayer allegedly made to Posca is protected by the qualified privilege. "A qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest" (Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149, 1150 [2012] [internal quotation marks and citations omitted], lv denied 19 NY3d 801 [2012]). To invoke the qualified privilege, "[t]he parties need only have such a relation to each other as would support a reasonable ground for supposing an innocent motive for imparting the information" (Anas v Brown, 269 AD2d 761, 762 [2000]).


Stipulations [2104] – Authority

Chae Shin Oh v Jeannot, 2018 NY Slip Op 02446 [2d Dept 2018]

On March 7, 2017, the plaintiff's new counsel sent a stop work letter and consent to change attorneys to the plaintiff's prior counsel. On April 7, 2017, the plaintiff moved by order to show cause, inter alia, to vacate the stipulation, contending that the plaintiff did not authorize her prior counsel to enter into the stipulation. The Supreme Court granted that branch of the motion which was to vacate the stipulation. The defendant appeals.

The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was to vacate the stipulation. The stipulation, signed by counsel for each party in this action during a court appearance, is a binding contract (see CPLR 2104; Daibes v Kahn, 116 AD3d 994, 995; Cervera v Bressler, 85 AD3d 839, 841; Kirkland v Fayne, 78 AD3d 660, 660; Utica Mut. Ins. Co. v Swim Tech Pool Servs., Inc., 37 AD3d 706Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447). Contrary to the plaintiff's contention, her counsel at the time of the stipulation had the apparent authority to enter into the stipulation. This prior counsel signed and verified the summons and complaint, appeared for the plaintiff at the preliminary conference and the compliance conference, and filed a note of issue, all before entering into the stipulation on the plaintiff's behalf. The presence of an attorney at pretrial conferences constitutes "an implied representation by [the client] to defendants that [the attorney] had authority" to bind the [*2]client to a stipulation (Hallock v State of New York, 64 NY2d 224, 231-232). Indeed, only attorneys who are authorized to enter into binding stipulations may appear at pretrial conferences (see 22 NYCRR 202.26[e]; cf. 22 NYCRR 202.12[b]). Here, the plaintiff's engagement of her prior counsel to represent her throughout the litigation and to appear on her behalf at pretrial and compliance conferences precludes her from arguing that prior counsel lacked the authority to bind her to the stipulation. "A stipulation made by the attorney may bind a client even where it exceeds the attorney's actual authority if the attorney had apparent authority to enter into the stipulation" (Davidson v Metropolitan Tr. Auth., 44 AD3d 819, 819, citing Hallock v State of New York, 64 NY2d at 231).

Thus, only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident, will a party be relieved from the consequences of a stipulation made during litigation (see Hallock v State of New York, 64 NY2d at 230). It was the plaintiff, as the party seeking to set aside the stipulation, who had the burden of showing that the agreement was the result of fraud, duress, or overreaching, or that its terms were unconscionable (see Cervera v Bressler, 85 AD3d at 841). The plaintiff failed to present any such evidence in this case (see Kirkland v Fayne, 78 AD3d at 660; Utica Mut. Ins. Co. v Swim Tech Pool Servs., Inc., 37 AD3d at 706).


Halstead v Fournia, 2018 NY Slip Op 02525 [3d Dept. 2018]

We begin our analysis with the recognition that courts have long favored and encouraged the fashioning of stipulations by parties to litigation and that "[s]trong policy considerations" favor the enforcement of such agreements (Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375, 383 [1993]; see Hallock v State of New York, 64 NY2d 224, 230 [1984]). As the Court of Appeals has explained: "Stipulations not only provide litigants with predictability and assurance that courts will honor their prior agreements, but also promote judicial economy by narrowing the scope of issues for trial. To achieve these policy objectives, a stipulation is generally binding on parties that have legal capacity to negotiate, do in fact freely negotiate their agreement and either reduce their stipulation to a properly subscribed writing or enter the stipulation orally on the record in open court" (McCoy v Feinman, 99 NY2d 295, 302 [2002] [citations omitted]; see Hallock v State of New York, 64 NY2d at 230; Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]; Mann v Simpson & Co., 286 NY 450, 459 [1941]). When a stipulation satisfies these requirements, as it does here, it is to be construed as an independent contract subject to principles of contract interpretation (see Matter of Banos v Rhea, 25 NY3d 266, 276 [2015]; McCoy v Feinman, 99 NY2d at 302; Rainbow v Swisher, 72 NY2d 106, 109 [1988]; Fulginiti v Fulginiti, 127 AD3d 1382, 1384 [2015]). So construed, a valid stipulation may not be set aside "absent a showing of good cause such as fraud, collusion, mistake or duress; or unless the agreement is unconscionable or contrary to public policy; or unless it suggests an ambiguity indicating that the words [do] not fully and accurately represent the parties' agreement" (McCoy v Feinman, 99 NY2d at 302 [internal citations omitted]; accord Matter of Badruddin, 152 AD3d 1010, 1011 [2017], lv dismissed 30 NY3d 1080 [2018]; Matter of Kaczor v Kaczor, 101 AD3d 1403, 1404 [2012]; see Tverskoy v Ramaswami, 83 AD3d 1195, 1196 [2011]).

CPLR R. 3211(a)(1) and (7): good language on 7

Pre answer (we are unwilling) and renew

Rowe v Nycpd, 2011 NY Slip Op 05477 (2nd Dept. 2011) 

However, after affording the plaintiff's allegations every possible favorable inference, we are unwilling to determine at this pre-answer stage of the litigation that the plaintiff has failed to assert claims alleging violations of federal civil and constitutional rights under color of state law, especially where, as here, the pleading is not being challenged for its sufficiency pursuant to CPLR 3211 (see 42 USC § 1983; see generally Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d 1450; Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192).

Accordingly, the Supreme Court's dismissal of the complaint based on the plaintiff's failure to timely serve a notice of claim was proper except to the extent it dismissed the plaintiff's cause of action to recover damages for violation of his federal civil and constitutional rights under color of state law (see Dorce v United Rentals N. Am., Inc., 78 AD3d 1110; Pendleton v City of New York, 44 AD3d 733).

The Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendants' motion to dismiss the complaint. "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Elder v Elder, 21 AD3d 1055, 1055; Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727). A motion for leave to renew must be based upon new facts, not offered on the original application, "that would change the prior determination" (CPLR 2221[e][2]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d 882, 884). The new or additional facts must have either not been known to the party seeking renewal (see Matter of Shapiro v State of New York, 259 AD2d 753) or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion (see Cole-Hatchard v Grand Union, 270 AD2d 447). However, in either instance, a "reasonable justification" for the failure to present such facts on the original motion must be presented (CPLR 2221[e][3]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d at 884). What constitutes a "reasonable justification" is within the Supreme Court's discretion (Heaven v McGowan, 40 AD3d 583). Here, the Supreme Court did not improvidently exercise its discretion in denying leave to renew. Where, as here, the "new evidence" consists of documents which the plaintiff knew existed, and were in fact in his own possession at the time the initial motion was made, no reasonable justification exists for the plaintiff's failure to exercise due diligence by submitting the documents in the first instance (see generally May v May, 78 AD3d 667; Huma v Patel, 68 AD3d 821, 822).


Cog-Net Bldg. Corp. v Travelers Indem. Co., 2011 NY Slip Op 06014 (2nd Dept., 2011)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence submitted by the movant utterly refutes the plaintiff's allegations against it and conclusively establishes a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 811; Fontanetta v John Doe, 73 AD3d 78, 83). Here, the documentary evidence submitted by the appellant failed to satisfy this standard, and the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it.

Furthermore, "[i]n considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Ascani v EI Du Pont de Nemours & Co.,AD3d, 2011 NY Slip Op 05210 [2d Dept 2011], quoting Sokol v Leader, 74 AD3d 1180, 1181; see Leon v Martinez, 84 NY2d 83, 87-88). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Rietschel v Maimonides Med. Ctr., 83 AD3d at 810; see Guggenheimer v Ginzberg, 43 NY2d 268, 275; Sokol v Leader, 74 AD3d at 1180-1181). The [*2]plaintiff alleged in its complaint that it had a relationship with the appellant "so close as to approach that of privity" (Sykes v RFD Third Ave. 1 Assoc., LLC, 15 NY3d 370, 372 [internal quotation marks omitted]). Since the appellant failed to show that this material fact alleged by the plaintiff was not a fact at all, and failed, moreover, to demonstrate that no significant dispute exists regarding the allegation, the appellant was not entitled to dismissal of the causes of action sounding in negligent misrepresentation and negligent failure to procure insurance (cf. Sykes v RFD Third Avenue. 1 Assoc., LLC, 15 NY3d 370; Benjamin Shapiro Realty Co. v Kemper Natl. Ins. Cos., 303 AD2d 245, 245-246). Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

Mason v First Cent. Natl. Life Ins. Co. of N.Y., 2011 NY Slip Op 06010 (3rd Dept. 2011)

As to defendant's argument that this claim failed to state a cause of action (see CPLR 3211 [a] [7]), we disagree. The question to be resolved on such a motion is not whether plaintiff "can ultimately establish [her] allegations" and is likely to prevail, but whether, if believed, her complaint sets forth facts that constitute a viable cause of action (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Crepin v Fogarty, 59 AD3d at 838)[FN1]. Here, the allegations in the complaint, if accepted as true and accorded the benefit of every favorable inference, state such a claim (see Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004]). Accordingly, defendant's motion to dismiss plaintiff's first cause of action on this ground must be denied.

SOL defense resurrected (“retracted”) in opp to SJ

CPLR R. 3211(e)

I don't rembember seeing this before

Lewiarz v Travco Ins. Co., 2011 NY Slip Op 02094 (App. Div. 3rd 2011)

Preliminarily, we conclude that Supreme Court properly entertained defendants' statute of limitations argument set forth for the first time in their motion for summary judgment. Plaintiffs correctly note that defendants had neither raised the statute of limitations defense in their answer nor moved to dismiss the complaint on that ground pursuant to CPLR 3211 (a) prior to their summary judgment motion. However, "'the waiver that would otherwise have resulted from [the failure to plead the defense or move to dismiss the complaint premised on such defense] was retracted by assertion of the defense in connection with the summary judgment motion[]'" (Allen v Matthews, 266 AD2d 782, 784 [1999], quoting Adsit v Quantam Chem. Corp., 199 AD2d 899, 900 [1993] [citation omitted]; see Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]).

I think the cite to Sullivan is a stretch.  I didn't look up the others.

When does a tort claim become enforcable

Bond v Progressive Ins. Co., 2011 NY Slip Op 01552 (App. Div., 3rd 2011)

This Court has not previously addressed the specific question of the time of accrual of a cause of action against an insurance broker for failing to give proper notice to an insurer of a claim against an insured, but the Appellate Division, First Department has held that such a claim accrues when injury results from the broker's failure, rather than at the time of the failure itself (see Lavandier v Landmark Ins. Co., 26 AD3d 264, 264 [2006]). This Court has previously held that a comparable cause of action arising out of an insurance broker's breach of the common-law duty to procure coverage requested by an insured sounded in tort and did not accrue at the time of the broker's breach, but when the insured's vehicle was involved in an accident for which the coverage was inadequate (see Venditti v Liberty Mut. Ins. Co., 6 AD3d 961, 962 [2004]; see also Chase Scientific Research v NIA Group, 96 NY2d at 30). We perceive no reason to reach a different conclusion in the current circumstances. [*3]

It is well established that a tort claim accrues when it "becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]). Accordingly, when damage is an essential element of a tort, the claim does not accrue at the time of the defendant's wrongful act or the plaintiff's discovery of the injury, but when harm is sustained (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 140 [2009]; Kronos, Inc. v AVX Corp., 81 NY2d at 94; Schultes v Kane, 50 AD3d 1277, 1278 [2008]). The injury underlying plaintiff's claim against HEG was not sustained at the time of HEG's alleged breach, but when that breach later caused harm, in the form of the judgment entered against the O'Rourkes. "Damages are a necessary element of a negligence claim which must be pleaded and proven" (Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d 646, 648 [2004] [citations omitted]). The O'Rourkes could not have pleaded or proven any harm arising from HEG's alleged breach of duty prior to the April 2008 judgment, and any negligence claim they might have sought to assert against HEG would have been subject to dismissal as premature (see Cutro v Sheehan Agency, 96 AD2d 669 [1983]; see also Matter of Martinez v State of New York, 62 AD3d 1225, 1226-1227 [2009]). As the O'Rourkes' claim against HEG, later assigned to plaintiff, did not become enforceable until the judgment against them was entered, plaintiff's action was timely, and Supreme Court properly denied HEG's motion to dismiss the complaint against it.

Might be important: “a fatal flaw”

D'Auria v Kent, 2011 NY Slip Op 00138 (App. Div., 3rd 2011)

As to the elbow injury, however, Benton merely opined in a single paragraph that plaintiff's diagnosis was "a subjective complaint and there are no objective findings to support the same." As plaintiff argues, Benton thus wholly failed to consider or address an MRI study obtained approximately one year prior to his medical record review. Further, it appears from the face of the affirmed MRI report that the results of this objective test may support the findings of plaintiff's treating physician and the report of another medical examiner upon which plaintiff relies, both of whom attributed her disability, to some unspecified degree, to the elbow injury and resulting limitation of use and function of her left arm and elbow. This failure thus presented a fatal flaw in defendants' motions; it is simply not possible to determine, as a matter of law upon the record presented, to what extent plaintiff's alleged disability related to the elbow injury, as opposed to the claimed back and spine injuries, nor whether the limitations arising from the elbow injury were more than "minor, mild or slight" (Parks v Miclette, 41 AD3d 1107, 1109-[*3]1111 [2007] [internal quotation marks and citations omitted])[FN4]. Therefore, finding that defendants failed to meet their burden of demonstrating a right to judgment in their favor as a matter of law, we reverse the order granting defendants' motions dismissing the complaints.

One day late CPLR § 3012; § 2005

 CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR § 2005 Excusable delay or default

Dinstber v Allstate Ins. Co., 2010 NY Slip Op 06200 (App. Div., 3rd 2010)

Plaintiff served a summons and verified complaint on the Insurance
Department on July 29, 2008 pursuant to Insurance Law § 1212. However,
defendant allegedly did not receive them until August 21, 2008. Although
defendant served an answer on August 28, 2008, plaintiff rejected it
because it was not verified. On September 4, 2008 — one day after
receiving plaintiff's letter of rejection — defendant served a second
answer, virtually identical to the first but properly verified, which
was rejected by plaintiff as untimely. Defendant then promptly moved to
extend its time to answer and to compel plaintiff to accept late service
thereof. Plaintiff cross-moved for a default judgment. Supreme Court
granted defendant's motion — giving defendant 30 days to file, serve and
file proof of service of the second answer — and denied plaintiff's
cross motion. Plaintiff now appeals and we affirm.


Pursuant to CPLR 3012 (d),
Supreme Court has the discretion to permit late service of an answer
upon the demonstration of a reasonable excuse for the delay or default
(see Rickert v Chestara, 56 AD3d 941, 942 [2008]; Watson v Pollacchi, 32 AD3d 565,
565 [2006]). "To that end, '[w]hether there is a reasonable excuse for a
default is a discretionary, sui generis determination to be made by the
court based on all relevant factors, including the extent of the delay,
whether there has been prejudice to the opposing party, whether there
has been willfulness, and the strong public policy in favor of resolving
cases on the merits'" (Rickert v Chestara, 56 AD3d at 942, quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Watson v Pollacchi, 32 AD3d at 565). Also relevant is whether the untimely answer sets forth a meritorious defense to plaintiff's complaint (see Rickert v Chestara, 56 AD3d at 942; Watson v Pollacchi, 32 AD3d at 565).

Here, contrary to plaintiff's assertion, we find that defendant
proffered both a reasonable excuse for its delay in serving a verified
answer and a sufficiently meritorious defense to the claims. Defendant
proffered several reasons for its delay. First, defendant submitted
evidence that it did not actually receive the complaint from the
Insurance Department until one week before the time to answer expired
and that an incorrect date of service on the transmittal sheet caused
further delay in the complaint being referred to counsel. After
unsuccessfully attempting to contact plaintiff to obtain an extension of
time to serve an answer, defendant effected such service one day after
counsel's receipt of the complaint. Secondly, defendant alleged law
office failure in neglecting to include the verification with the
initial answer, which was timely served. In our view, these
circumstances established a reasonable excuse for the default (see CPLR 2005).

We also note that defendant's answer set forth a myriad of
defenses including, among others, failure to state a cause of action,
failure to comply with the terms and conditions of the policy, fraud or
perjury on plaintiff's part and that the claim is time-barred. In
addition, defendant's attorney provided Supreme Court with the original
denial of coverage letter, which set forth in detail the reasons why
plaintiff's claim for benefits was denied. Such assertions set forth a
sufficiently meritorious defense for purposes of defendant's motion (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774-775 [2000]).

In view of defendant's reasonable excuse for the default, the
minimal delay, defendant's expeditious motion to compel acceptance of
the answer, the absence of proof that the default was willful or any
indication that plaintiff was prejudiced by the delay, and the existence
of an arguably meritorious defense, we conclude that Supreme Court's
decision to grant defendant's motion to extend the time to answer and to
compel plaintiff to accept service was a proper exercise of its
discretion (see Rickert v Chestara, 56 AD3d at 942; Acker v VanEpps, 45 AD3d 1104, 1105, 1106 [2007]).

The bold is mine.

I forgot to post this old subpoena decision, but it reminded me to post two recent decisions

Hart v Kinney Drugs, Inc., 67 AD3d 1154 (App. Div., 3rd, 2009)

In 2007, after relations between the parties had deteriorated and the tenant brought an action against two of the landlords' principals, the landlords commenced this action alleging that, among other things, the tenant had breached the parties' agreements by failing to pay percentage rents for the three stores. The tenant answered that the memorandum had terminated its obligation to pay percentage rents for those stores and served a subpoena for the records of the landlords' bank. When the landlords moved to quash the subpoena, the tenant cross-moved for summary judgment dismissing the cause of action.

Finding the memorandum to be ambiguous as to whether the tenant was obligated to pay percentage rents for the three stores, Supreme Court denied the tenant's cross motion and partially denied the landlords' motion to quash by greatly narrowing the scope of the tenant's subpoena. The landlords then moved to renew the motion to quash the subpoena in its entirety and attempted to present a further "Global Lease Agreement" in support of its position. That motion also was denied. The landlords now appeal from Supreme Court's orders, contending that the memorandum is not ambiguous since it is silent as to percentage rents for the three stores and, therefore, the lease terms regarding percentage rents remain unchanged. The landlords argue that, in the absence of any ambiguity, the information sought by the tenant's subpoena is extrinsic evidence that cannot be considered in construing the memorandum.

There can be no real dispute that the tenant's subpoena seeks extrinsic evidence. Inasmuch as extrinsic evidence of the parties' intent may be considered only if their agreement is ambiguous (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]), the landlords' motion to quash necessarily depends upon whether the memorandum is ambiguous. It is well settled that "[w]hether or not a writing is ambiguous is a question of law to be resolved by the courts" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). In addition, while "silence does not equate to contractual ambiguity" (Greenfield v Philles Records, 98 NY2d at 573; see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]), an omission as to a material issue can create an ambiguity and allow the use of extrinsic evidence where the context within the document's four corners suggests that the parties intended a result not expressly stated (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d 495, 500 [2004]; Barrow v Lawrence United Corp., 146 AD2d 15, 18-19 [1989]).


Inasmuch as the memorandum can be read as providing either a new, increased single rent term that replaced the prior base and percentage rents for the three stores, as the tenant claims, or new, increased base rents in addition to the existing percentage rents, as the landlords claim, it is ambiguous. In view of the questions raised by the memorandum's inconsistent treatment of these two groups of stores, unexplained within its four corners, Supreme Court properly determined that extrinsic evidence is needed to determine the parties' intent in executing it (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d at 500; Belknap v Witter & Co., 61 NY2d 802, 804 [1984], affg 92 AD2d 515 [1983]; State of New York v Industrial Site Servs., Inc., 52 AD3d 1153, 1156 [2008]; Barrow v Lawrence United Corp., 146 AD2d at 18).

Given that ruling, Supreme Court also did not abuse its discretion in permitting disclosure of the landlords' records held by a nonparty to the extent that they could reveal the parties' intent in executing the memorandum. The tenant sufficiently demonstrated that the information which it sought was material and necessary. Further, the court carefully limited the scope of disclosure to shield confidential financial information, making it unnecessary for the tenant to show that the information is indispensable (see generally Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]; Jordan v Blue Circle Atl., 296 AD2d 752, 752-753 [2002]; cf. Saratoga Harness Racing v Roemer, 274 AD2d 887, 889 [2000]).

Finally, in light of the landlords' failure to adequately explain the omission of the Global Lease Agreement from their submission on the parties' initial motions, Supreme Court did not abuse its discretion by denying the motion to renew (see Matter of Mouawad, 61 AD3d 1169, 1169-1170 [2009]; Kahn v Levy, 52 AD3d 928, 929 [2008]).

Almost on topic is a more recent decision: Gitlin v Chirinkin, 2010 NY Slip Op 01920 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the appellants' motion which was to compel the plaintiff to disclose his tax returns and bank records. The appellants failed to demonstrate that any information in the tax returns was indispensable to their defense or counterclaim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637; Latture v Smith, 304 AD2d 534, 536; see also Banigan v Hill, 57 AD3d 463; Benfeld v Fleming Props., LLC, 44 AD3d 599). Moreover, the appellants failed to demonstrate that the plaintiff's bank records were material and necessary to their defense or counterclaim (see CPLR 3101[a]; Auerbach v Klein, 30 AD3d 451).

The plaintiff sustained his burden of demonstrating that the appellants should be required to disclose their tax returns (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997). In addition, the plaintiff also clearly demonstrated that the bank records he requested of the appellants were material and necessary to the pursuit of his claims that the defendants had defrauded him. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was for a protective order pursuant to CPLR 3103.

Tangentially related is Riccuiti v Consumer Prod. Servs., LLC, 2010 NY Slip Op 01947 (App. Div., 2nd, 2010)

Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability and pursuant to CPLR 3126 to strike the answer insofar as asserted on behalf of Kowalski, based upon Kowalski's failure to appear for a court-ordered deposition.


"Although actions should be resolved on the merits whenever possible, where the conduct of th
e resisting party is shown to be willful and contumacious, the striking of a pleading is warranted" (Savin v Brooklyn Mar. Park. Dev. Corp., 61 AD3d 954, 954). Here, the Supreme Court providently exercised its discretion in striking the answer insofar as asserted on behalf of Kowalski. The record reflects that the answer was interposed on behalf of both defendants, and that Kowalski did not raise any defenses based upon lack of personal jurisdiction. In opposition to that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of Kowalski, defense counsel represented that his office was unable to locate Kowalski and, therefore, could not produce him for a deposition. The mere fact that Kowalski may have been outside the State of New York, and had made himself unavailable, did not preclude the Supreme Court from striking the answer [*2]insofar as interposed by him for failure to appear at a court-ordered deposition (see Carabello v Luna, 49 AD3d 679, 680; Maignan v Nahar, 37 AD3d 557).

The bold is mine.

CPLR R. 3212(a)(f) Shennanigans and CPLR § 3213

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action
(b) Supporting proof; grounds; relief to either party
(f) Facts unavailable to opposing party

CPLR § 3213 Motion for summary judgment in lieu of complaint

Abdalla v Mazl Taxi, Inc., 2009 NY Slip Op 07566 (App. Div., 2nd, 2009)

The defendants established good cause in support of that branch of
their motion which was for leave to extend their time to move for
summary judgment until 120 days after receipt of all outstanding
discovery, since there was significant discovery outstanding at the
time the note of issue was filed
(see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Jones v Grand Opal Constr. Corp., 64 AD3d 543; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724). Therefore, that branch of their motion should have been granted.

Delacruz v Ostrich Cab Corp., 2009 NY Slip Op 07577 (App. Div., 2nd, 2009)

The defendants failed to meet their prima facie burden of showing that
the plaintiff did not sustain a serious injury within the meaning of
Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79
NY2d 955, 956-957). During his examination of the plaintiff, the
defendants' orthopedic surgeon found restrictions in the range of
motion of the plaintiff's lumbar spine, which he described as
"self-restricted." However, he failed to explain or substantiate with
any objective medical evidence the basis for his conclusion that the
limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Accordingly, the Supreme Court properly denied the defendants' motion
for summary judgment without considering the sufficiency of the
plaintiff's opposition papers
(see Cuevas v Compote Cab Corp., 61 AD3d 812; Coscia v 938 Trading Corp., 283 AD2d 538). 

Solomon v Langer, 2009 NY Slip Op 07335 (App. Div., 1st, 2009)

Plaintiff established her entitlement to summary judgment in lieu of
complaint on the promissory note made by defendant by establishing
execution, delivery, demand and failure to pay
(see Israel Discount Bank of N.Y. v 500 Fifth Ave. Assoc.,
167 AD2d 203 [1990]). Defendant failed to substantiate, in evidentiary
form, his assertion that payments to plaintiff's mother, an alleged
business acquaintance since deceased, discharged the note. Defendant
sets forth no evidence of misleading conduct on the part of plaintiff
indicating that she gave her mother the authority to transact business
on her behalf (compare Hallock v State of New York, 64 NY2d 224,
231 [1984]). Furthermore, the note unequivocally stated that payment
was to be made directly to plaintiff and the parol evidence rule bars
consideration of defendant's purported oral agreement with plaintiff's
mother regarding payment of the loan (see Manufacturers Hanover Trust Co. v Margolis,
115 AD2d 406 [1985]). Moreover, it is settled that "invocation of
defenses based on facts extrinsic to an instrument for the payment of
money only do not [*2]preclude CPLR 3213 consideration"
(Alard, L.L.C. v Weiss, 1 AD3d 131,767 NYS2d 11, 2003 N.Y. Slip Op. 18173).

Davila v New York City Tr. Auth., 2009 NY Slip Op 07792 (App. Div., 2nd, 2009)

The opposition to the motion submitted by Keyspan and the defendant
Liberty Department Store, the only parties who opposed the motion,
failed to raise a triable issue of fact (see CPLR 3212[b]). [*2]Moreover,
contrary to the contention of those defendants, the appellant's motion
was not premature, as they failed to offer an evidentiary basis to
suggest that discovery may lead to relevant evidence and that facts
essential to justify opposition were exclusively within the knowledge
or control of the appellant
(see Lopez v WS Distrib., Inc., 34
AD3d 759, 760). "The mere hope or speculation that evidence sufficient
to defeat a motion for summary judgment may be uncovered during the
discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34
AD3d 759). Accordingly, the Supreme Court should have granted the
appellant's motion for summary judgment dismissing the complaint and
all cross claims insofar as asserted against it.

and finally,

Stoian v Reed, 2009 NY Slip Op 07713 (App. Div., 3rd, 2009)

We also reject plaintiffs' assertion that Supreme Court abused its
discretion in failing to grant them additional time with which to
conduct discovery. Although the court had the discretion to permit
further discovery if it found that "facts essential to justify
opposition [to a motion for summary judgment] may exist but cannot then
be stated" (CPLR 3212 [f]; see Clochessy v Gagnon, 58 AD3d
1008, 1010 [2009]), "the nonmoving party must produce some evidence
indicating that further discovery 'will yield material and relevant
(Fleischman v Peacock Water Co., Inc., 51 AD3d 1203, 1205 [2008], quoting Zinter Handling, Inc. v Britton, 46 AD3d 998,
1001 [2007] [citation omitted]). "The 'mere hope' that evidence
sufficient to defeat the motion may be uncovered during the discovery
process is not enough" (Mazzaferro v Barterama Corp., 218 AD2d 643, 644 [1995], quoting Jones v Gameray, 153 AD2d 550, 551 [1989]; see Clochessy v Gagnon, 58 AD3d at 1010).

Here, plaintiffs requested an extension to obtain testimony from
three contractors that had worked on the house. However, plaintiffs
fail to provide any specifics as to how these [*3]individuals could provide evidence material and relevant to defendants' alleged active concealment (see Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Further, it is undisputed that plaintiffs provided
defendants with a list of contractors who worked on the house prior to
the 1999 closing; indeed, plaintiff admitted during his deposition that
he spoke with at least two of these individuals regarding repairs to
the house (see Flieschman v Peacock Water Co., Inc., 51 AD3d at 1205; Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Under these circumstances, and given the fact that
plaintiffs provide no reasonable excuse for delaying their request for
additional discovery for over two years following depositions and,
indeed, nearly six years after commencing this action, we find no abuse
of discretion in Supreme Court's decision to deny plaintiffs' request
(see Dalaba v City of Schenectady, 61 AD3d 1151, 1153 [2009]).

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