Appellate Division

Judicial Estoppel

Wells Fargo Bank N.A. v Webster Bus. Credit Corp., 2014 NY Slip Op 00412 [1st Dept. 2014]

Contrary to defendant's argument, plaintiffs' previous assertion of their own claim for contractual indemnification does not judicially estop them from denying that defendant is entitled to indemnification of attorneys' fees under the agreement. The doctrine of judicial estoppel " precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed'" (Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1st Dept 1998], lv dismissed 92 NY2d 962 [1998] [quoting Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435, 436 [2d Dept 1995]). As plaintiffs did not prevail on their contractual indemnification claim, the doctrine of judicial estoppel does not apply (see Kvest LLC v Cohen, 86 AD3d 481, 482 [1st Dept 2011]; Gale P. Elston, P.C. v Dubois, 18 AD3d 301, 303 [1st Dept 2005]).

Nor does plaintiffs' prior claim for contractual indemnification, standing alone, constitute a "judicial admission" that attorneys' fees are recoverable in inter-party disputes. On the contrary, plaintiffs' former construction of the agreement was a legal argument, and not a "fact" amenable to treatment as a "formal judicial admission" (GJF Constr., Inc. v Sirius Am. Ins. Co., 89 AD3d 622, 626 [1st Dept 2011]).

Emphasis is mine (the bolded portion only) (italics in original).

CPLR 3217(a)(1) untimely unilateral voluntary discontinuance

CPLR 3217(a)(1)

BDO USA, LLP v Phoenix Four, Inc., 2014 NY Slip Op 00410 [1st Dept. 2014]

The motion court erred in deeming defendants' motions withdrawn. Indeed, the parties never "stipulated" to discontinue BDO's action. Rather, BDO unilaterally filed a notice of voluntary discontinuance. This notice was untimely because BDO served it after defendants filed their motions to dismiss (see CPLR 3217[a][1]; Polgar v Focacci, 2 Misc 3d 836, 839-840 [Sup Ct, NY County 2003]; David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3217:8 ["[t]he defendant who has moved to dismiss under CPLR 3211 has already done as much in the litigation (and more) than if she had merely answered the complaint"]). Indeed, if a motion to dismiss is not a "responsive pleading" within the meaning of CPLR 3217(a)(1), a plaintiff would be able to freely discontinue its action without prejudice solely to avoid a potentially adverse decision on a pending dismissal motion. This Court has made clear that such conduct is improper (see Rosenfeld v Renika Pty. Ltd., 84 AD3d 703 [1st Dept 2011]; McMahan v McMahan, 62 AD3d 619, 620 [1st Dept 2009]). Thus, BDO's notice was ineffective and a nullity, and the motion court should not have deemed defendants' motions withdrawn (see Citidress II Corp. v Hinshaw & Culbertson LLP, 59 AD3d 210, 211 [1st Dept 2009]; Tutt v Tutt, 61 AD3d 967 [2d Dept 2009]).

That BDO served its notice of discontinuance in an attempt to circumvent the Administrative Judge's order denying its request to have its action assigned to the Commercial Division may be a valid basis for granting a discontinuance with prejudice (see e.g. Rosenfeld, 84 AD3d at 703; McMahan, 62 AD3d at 619; NBN Broadcasting v Sheridan Broadcasting Networks, 240 AD2d 319 [1st Dept 1997]; Hirschfeld v Stahl, 242 AD2d 214 [1st Dept 1997]). However, given the unusual procedural history that led to the commencement of this action, we decline to discontinue the action with prejudice. Specifically, this action arose from defendant SRC's failure to properly notify this Court of the settlement the parties had reached in the contribution action before the mediator. Indeed, although the parties had reached a settlement, and the mediator specifically directed the parties to inform this Court of the settlement, SRC unilaterally took the position that the settlement was not effective and that the appeal should continue. As a result, this Court dismissed the contribution action before the parties finalized a [*5]written agreement, thus precluding BDO from enforcing the oral agreement (see BDO Seidman LLP, 92 AD3d 426; BDO Seidman LLP, 70 AD3d 556).

Because the motion court deemed Phoenix's motion to dismiss withdrawn without having considered its merit, we remand the action for further proceedings, including consideration of the motion.

Empahsis is mine.

falsus in uno falsus in omnibus

Bank v Holt, 2014 NY Slip Op 00344 [2nd Dept. 2014]

Although, as a general matter, we do not lightly disturb findings that are based upon conflicting evidence and implicate the credibility of witnesses, the evidence adduced at the hearing warrants a reversal of the Supreme Court's determination that process was properly effected upon Holt (see Matter of Chemical Bank v Davis, 133 AD2d 756; Aronauer v Ohl, 80 AD2d 592). Here, there was evidence that, of the five people whom the process server had allegedly contacted on various dates at the premises owned by Holt, one had moved out of the premises prior to the time in question, three had been earlier evicted, and one established through documentary evidence that he was physically in Atlanta, Georgia, on business when the process server claimed the witness was in Queens. Where a witness has given testimony that is demonstrably false, we may, in accordance with the maxim falsus in uno falsus in omnibus, choose to discredit or disbelieve other testimony given by that witness (see DiPalma v State of New York, 90 AD3d 1659, 1660; Accardi v City of New York, 121 AD2d 489, 490-491; see generally People v Becker, 215 NY 126, 144). Under the circumstances presented here, we conclude that the process server's testimony with respect to the affix-and-mail service allegedly effected upon Holt in Westbury should not be credited or believed.

Emphasis mine.

3025

CPLR 3025

United Fairness, Inc. v Town of Woodbury, 2014 NY Slip Op 00343 [2nd Dept. 2014]

Under the circumstances presented herein, the Supreme Court should have decided, on the merits, that branch of the plaintiff's motion which was for leave to amend the complaint before the court decided the motions of the Town and the Village to dismiss the complaint (see generally Cooke-Garrett v Hoque, 109 AD3d 457). Leave to amend a pleading should be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Carroll v Motola, 109 AD3d 629; Finkelstein v Lincoln Natl. Corp., 107 AD3d 759, 761; Lucido v Mancuso, 49 AD3d 220, 227). Moreover, a court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt (see Lucido v Mancuso, 49 AD3d at 227). Here, the proposed amended complaint, which principally sought to shift the claims from the plaintiff to a party who could have asserted those claims in the first instance, is proper, since "such an amendment, by its nature, did not result in surprise or prejudice to the [defendants], who had prior knowledge of the claim[s] and an opportunity to prepare a proper defense" (Fulgum v Town of Cortlandt Manor, 19 AD3d 444, 446; see JCD Farms v Juul—Nielsen, 300 AD2d 446; New York State Thruway Auth. v CBE Contr. Corp., 280 AD2d 390). In addition, the proposed amended complaint was not palpably insufficient or patently devoid of merit.

Accordingly, that branch of the plaintiff's motion which was for leave to serve an amended complaint should have been granted. Additionally, since the proposed amended complaint rectified the plaintiff's lack of standing, the Supreme Court should not have granted the motions to dismiss the complaint on the basis of lack of standing.

Emphasis mine.

Reopening the record

Sweet v Rios, 2014 NY Slip Op 00341 [2nd Dept. 2014]

Although the trial court suggested it would declare a mistrial and grant a new trial if either party moved for one so that certain matters could be "cleaned up," the defendants declined to seek a mistrial prior to the verdict. Accordingly, the defendants waived the potential remedy of a mistrial, and cannot argue on appeal that a mistrial should have been declared (see Rodriguez v Valentine, 20 AD3d 558, 559; Bonilla v New York City Health & Hosps. Corp., 229 AD2d 371; see also CPLR 4402; Tirado v Miller, 75 AD3d 153, 159).

Contrary to the defendants' contention, the trial court providently exercised its discretion in permitting the plaintiff to reopen her case to call her previously unavailable treating chiropractor as a witness and to introduce his complete office records into evidence. A trial court, in the exercise of discretion and for sufficient reasons, may allow a party to reopen and correct defects in evidence that have inadvertently occurred (see Kay Found. v S & F Towing Serv. of Staten Is., Inc., 31 AD3d 499, 501; Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 790-791; see also Feldsberg v Nitschke, 49 NY2d 636, 643-644). When a motion to reopen is made, the trial court should consider whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted. Here, the plaintiff proffered a sufficient reason for the request and specified the evidence she would present if permitted to reopen, the defendants were not prejudiced by the presentation of such proof, and there was no undue delay (see Kay Found. v S & F Towing Serv. of Staten Is., Inc., 31 AD3d at 501; Frazier v Campbell, 246 AD2d 509, 510; Veal v New York City Tr. Auth., 148 AD2d 443, 444).

The emphasis is mine.

CPLR 2001 procedural irregularities and CPLR 3101 overbroad discovery

CPLR 2001

CPLR 3101

Lawrence v Kennedy, 2014 NY Slip Op 00329 [2nd Dept. 2014]

Contrary to the plaintiff's contentions, the Supreme Court properly considered the firm's motion for leave to reargue that branch of its prior motion which was to compel the production of certain documents despite certain procedural irregularities, as those irregularities did not prejudice the decedent (see CPLR 2001; Jones v LeFrance Leasing L.P., 81 AD3d 900, 903; Piquette v City of New York, 4 AD3d 402, 403). Further, the Supreme Court providently exercised its discretion in granting leave to reargue (see CPLR 2221[d][2]; Singleton v Lenox Hill Hosp., 61 AD3d 956, 957; Marini v Lombardo, 17 AD3d 545, 546; Carrillo v PM Realty Group, 16 AD3d 611, 611).

Upon reargument, however, the Supreme Court should have denied that branch of the firm's motion which was to compel the production of the documents, including certain documents removed from the firm's offices by the plaintiff. In this regard, the firm's document requests, many of which sought the decedent's personal financial information, were overly broad, and sought irrelevant or confidential information (see Conte v County of Nassau, 87 AD3d 559, 560; Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 78 AD3d 752, 753; Pugliese v Mondello, 57 AD3d 637, 640; Benfeld v Fleming Props., LLC, 44 AD3d 599, 600; Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621; Latture v Smith, 304 AD2d 534, 536).

Emphasis is mine.

CPLR 602 You cant’ consolidate a dismissed action into another action

CPLR 602

Jacobs v Mostow, 2014 NY Slip Op 00328 [2nd Dept. 2014]

The Supreme Court properly denied that branch of the plaintiff's motion which was to consolidate this action with an action entitled Jacobs v Mostow, filed in the Supreme Court, Nassau County, under Index No. 7715/07 (hereinafter the 2007 action). Consolidation requires two pending actions (see CPLR 602). Since the 2007 action was dismissed, and that dismissal was affirmed on appeal, there is no pending 2007 action to consolidate with this action.

CPLR 3101 Additional discovery of financial documents was neither material nor necessary

CPLR 3101(a)

Hatter v Myerson, 2014 NY Slip Op 00326 [2nd Dept. 2014]

Contrary to the appellant's contention, the Supreme Court providently exercised its discretion in concluding that the additional discovery of financial documents sought by the appellant was neither material nor necessary in the defense of the action (see CPLR 3101[a]; Constantino v Dock's Clam Bar & Pasta House, 60 AD3d 612).

Decision doesnt give anything in the way of facts, but it might prove useful as a cite.

Pecile v Titan Capital Group, LLC, 2014 NY Slip Op 00425 [1st Dept. 2014]

Regarding defendants' demand for access to plaintiffs' social media sites, they have failed to offer any proper basis for the disclosure, relying only on vague and generalized assertions that the information might contradict or conflict with plaintiffs' claims of emotional distress. Thus, the postings are not discoverable (see Tapp v New York State Urban Dev. Corp., 102 AD3d 620 [1st Dept 2013]).

Lastly, defendants correctly assert that prior criminal convictions and pleas of guilty are relevant and discoverable (CPLR 4513; see also Sansevere v United Parcel Serv., 181 AD2d 521 [*2][1st Dept 1992]). However, "[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense" (Criminal Procedure Law § 720.35[1]). Thus, defendants cannot compel disclosure of the details of a youthful offense, since that would "contravene[] the goals envisioned by the youthful offender policy" (State Farm Fire & Cas. Co. v Bongiorno, 237 AD2d 31, 36, [2d Dept 1997]; see also Auto Collection, Inc. v C.P., 93 AD3d 621, 622 [2d Dept 2012]). Nothing in the record suggests that the evidence sought would serve as collateral estoppel to the claim, or is relevant in some other manner that would serve as an exception to that general rule (see Green v Montgomery, 95 NY2d 693 [2001]).

3212(a) outstanding discovery was not sufficient to warrant extention to make late SJ

CPLR 3212(a)

Courtview Owners Corp. v Courtview Holding B.V., 2014 NY Slip Op 00322 [2nd Dept. 2014]

Further, the Supreme Court properly denied, as untimely, those branches of the plaintiff's motion which were for summary judgment, and the defendants' cross motion for summary judgment, as the parties failed to demonstrate good cause for making their respective motion and cross motion more than 60 days after the filing of the note of issue, as required by a preliminary conference order (see Rivera v New York Presbyt. Hosp., 57 AD3d 755; Jackson v Jamaica First Parking, LLC, 49 AD3d 501, 501; Coty v County of Clinton, 42 AD3d 612, 614). While significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129; Kung v Zheng, 73 AD3d 862, 863), contrary to the defendants' contention, the discovery outstanding at the time the note of issue was filed was not essential to their cross motion (see Avezbakiyev v City of New York, 104 AD3d 888, 888-889; Greenpoint Props., Inc. v Carter, 82 AD3d 1157, 1158).

Emphasis is mine.

Premature dismissal (3211/3212 was a premature 4401)

CPLR 3212
CPLR 3211
CPLR 4401

Deonarine v Montefiore Med. Ctr., 2014 NY Slip Op 00299 [1st Dept. 2014]

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered July 19, 2012, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 and 3212, and denied defendant's motion to preclude plaintiff's use of his deposition at trial, unanimously affirmed as to the denial of defendant's motion to dismiss, and the appeal therefrom otherwise dismissed, without costs.

The court properly denied the motion to dismiss the complaint inasmuch as it was based solely on defendant's assertion that plaintiff would be unable to make out a prima facie case at trial by reason of his anticipated "unavailability to testify as a result of his imminent deportation . . ." Accordingly the motion was actually a prematurely made motion for judgment pursuant to CPLR 4401, which has to await the close of plaintiff's case at trial even if plaintiff's ultimate success in the action is improbable (see Cass v Broome County Coop. Ins. Co., 94 AD2d 822, 823 [3rd Dept 1983]). The court's denial of defendant's motion to preclude was effectively an evidentiary ruling made in advance of trial and, as such, is not appealable (see Balcom v Reither, 77 AD3d 863, 864 [2nd Dept 2010]). We have considered defendant's remaining contentions and find them to be without merit.

Emphasis is mine.