Appellate Division

Peculiar 3211 and other 3211

3211(a)

3211(d)

Digital Ctr., S.L. v Apple Indus., Inc., 2012 NY Slip Op 02806 (1st Dept., 2012)

This matter arose from a dispute between plaintiff, a Spanish company that manufactures photo booths, and defendant, a New York-based coin-operated machine business that had purchased some of plaintiff's booths. In lieu of an answer, defendant filed a motion to dismiss the complaint under CPLR 3211(a)(7), for failure to state a cause of action and CPLR 3211(a)(8), for lack of jurisdiction over plaintiff.

Defendant's CPLR 3211(a)(8) motion is based on what it argues is plaintiff's failure to register as a foreign corporation doing business in the State of New York as required by Business Corporation Law § 1312(a). Defendant asserts that plaintiff ships hundreds of photo booths into New York State, that its contacts within the State are sufficiently systematic and regular to warrant registration with the Secretary of State, and that plaintiff's failure to do so mandates dismissal of the action. However, it is well established that the solicitation of business and facilitation of the sale and delivery of merchandise incidental to business in interstate and/or international commerce is typically not the type of activity that constitutes doing business in the state within the contemplation of § 1312(a) (Uribe v Merchants Bank of N.Y., 266 AD2d 21 [1999]). The court correctly denied the motion, finding that at the very least, the record shows that a question of fact exists concerning whether or not plaintiff's contacts were systematic and regular enough to warrant compliance with the statute (see e.g. Alicanto, S.A. v Woolverton, 129 AD2d 601 [1987]).

Furthermore, it should be noted that defendant brought this part of its motion under the wrong subsection of CPLR 3211(a). Dismissal pursuant to Business Corporation Law § 1312(a) is not jurisdictional, but rather, affects the legal capacity to sue. Accordingly, a motion to dismiss for lack of compliance with Business Corporation Law § 1312(a) is properly brought [*2]pursuant to CPLR 3211(a)(3), not (a)(8)(see e.g. Hot Roll Mfg. Co. v Cerone Equip. Co., 38 AD2d 339 [1972]). It should also be noted that the motion court's characterization of this issue as being one of standing was improper. The question of capacity to sue is conceptually distinct from the question of standing (see e.g. People v Grasso, 54 AD3d 180, 190 n 4 [2008], citing Silver v Pataki, 96 NY2d 532, 537 [2001]).

Turning to the merits, the motion court correctly determined, as to the complaint's first and second causes of action, that plaintiff sufficiently stated claims for breach of contract and breach of the duty of good faith and fair dealing, arising from the purchase by defendant of 120 photo booths from plaintiff in or about April and May of 2009. Defendant received 60 of those booths, and allegedly cancelled shipment of the remaining 60 and refused to make payment.

The motion court erred in finding that plaintiff sufficiently alleged a cause of action for an account stated. Our review of the record shows an essential element of such claim to be utterly missing: an agreement with respect to the balance due (Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d 855 [2012]). Indeed, while the agreement on the balance due may be implied by the defendant's retention of the billings for an unreasonable period of time without objecting to them (id.), plaintiff here failed to plead precisely what that amount is and to support that amount with invoices sent to and retained by defendant.

Finally, plaintiff's seventh cause of action, for patent, trademark and trade dress infringement must be dismissed in part. Plaintiff has not stated the elements of a cause of action for patent infringement (see e.g. McZeal v Sprint Nextel Corp., 501 F3d 1354, 1357 [Fed Cir 2007]). It also failed to state a cause of action for infringement of a registered trademark; however, it has sufficiently stated a cause of action on a trade dress theory (see e.g. Yurman Design, Inc. v PAJ, Inc. 262 F3d 101, 115-116 [2d Cir 2001]).

Solomons v Douglas Elliman LLC, 2012 NY Slip Op 02577 (1st Dept., 2012)

OBRC's dismissal motion was properly denied because, at this stage, neither Travin's affidavit nor the certificate of occupancy is sufficient to rebut plaintiff's claim that the subject building contains at least six units. A motion to dismiss under CPLR 3211, when based on documentary evidence, is granted only if that evidence "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. Of N.Y., 98 NY2d 314, 326 [2002]). The affidavit of Travin, "which do[es] no more than assert the inaccuracy of plaintiff[ s] allegations, may not be considered, in the context of a motion to dismiss, for the purpose of determining whether there is evidentiary support for the complaint" (Tsimerman v Janoff, 40 AD3d 242, 242 [2007]). In addition, the 22-year-old certificate of occupancy does not conclusively prove how many apartments were in the building when plaintiff tried to rent in it.

Eighth Ave. Garage Corp. v Kaye Scholer LLP, 2012 NY Slip Op 02402 (1st Dept., 2012)

Supreme Court properly considered the evidence submitted on the motion, including the e-mails, which conclusively disposed of plaintiffs' claims (see Pitcock v Kasowitz, Benson, Torres & Friedman LLP, 74 AD3d 613 [2010]). Accordingly, it is of no moment that discovery has not been conducted. In addition, plaintiffs have not asserted that facts essential to justify [*2]opposition to the motion may have existed but could not be stated (see CPLR 3211[d]).

Muhlhahn v Goldman, 2012 NY Slip Op 01562 (1st Dept., 2012)

Defendant Goldman's affidavit and the attached recordings of his interviews with plaintiff should have been considered on the motion. An affidavit is an appropriate vehicle for authenticating and submitting relevant documentary evidence (see Suss v New York Media, Inc., 69 AD3d 411, 412 [2010]), and may provide "connecting link[s]" between the documentary evidence and the challenged statements (Standard Chartered Bank v D. Chabbott, Inc., 178 AD2d 112 [1991]). Here, Goldman's affidavit was sufficient to authenticate the recordings of his interviews with plaintiff, since he stated in his affidavit that he was a participant in the recorded conversations and that the recordings were complete and accurate and had not been altered (see People v Ely, 68 NY2d 520, 527 [1986]; Lipton v New York City Tr. Auth., 11 AD3d 201 [2004], lv denied 5 NY3d 707 [2005]). Contrary to the motion court's finding, Goldman never stated that the recordings were "excerpts" or "highlights" of plaintiff's statements. Instead, he stated that the attached recordings were only some of the many recorded interviews of plaintiff that he had conducted. Moreover, in his reply affidavit, Goldman clarified that his opening affidavit was only meant to authenticate the evidence and aid the court by highlighting relevant statements.

Based on the documentary evidence and Goldman's affidavit, challenged statements 4, 5, 7, 8, 10, and 12 are true or substantially true, and thus are not actionable (see e.g. Gondal v New York City Dept. of Educ., 19 AD3d 141, 142 [2005]; Chinese Consol. Benevolent Assn. v Tsang, 254 AD2d 222, 222-223 [1998]). In addition, statements 4 through 10 either contain non-actionable opinion or are not reasonably susceptible of a defamatory connotation (see Ava v NYP Holdings, Inc., 64 AD3d 407, 412-413 [2009], lv denied 14 NY3d 702 [2010]; Guerrero v Carva, 10 AD3d 105, 111 [2004]). In any event, a claim based on challenged statements 6, 7, and 8 is barred by the single instance rule (see Bowes v Magna Concepts, 166 AD2d 347 [1990]). [*2]

We also dismiss plaintiff's claim based on challenged statement 11, which states, in pertinent part, that plaintiff "has made herself an outlaw of sorts by not carrying malpractice insurance." Plaintiff admitted on The Brian Lehrer Show that she did not carry malpractice insurance, and the recording of that radio interview was adequately authenticated.

Improper 3211 conversion and some jurisdictional stuff

3211

Bokara Rug Co., Inc. v Kapoor, 2012 NY Slip Op 02269 (1st Dept., 2012)

The motion court improperly treated the motion to dismiss pursuant to CPLR 3211 as a motion for summary judgment dismissing the complaint without providing adequate notice to plaintiffs (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). Plaintiffs did not deliberately chart a summary judgment course, even though they submitted some evidence in opposition to defendants' motion (see Wiesen v New York Univ., 304 AD2d 459, 460 [2003]). Thus, the motion will be reviewed under the standard applicable on a motion to dismiss (see Velez v Captain Luna's Mar., 74 AD3d 1191, 1191 [2010]).

The IAS court erred by dismissing the first, fifth, and sixth causes of actions (alleging fraud, negligent misrepresentation, and breach of contract, respectively) as time-barred. We agree with the motion court that to the extent that these claims are based on transactions or representations that occurred outside the applicable limitations periods, they are barred. However, in support of their motion to dismiss, defendants submitted an ambiguous affidavit and a sampling of invoices, and referred to documents submitted in another case. Defendants did not meet their initial burden of demonstrating that no sales of the type complained of by plaintiff were made by Kapoor Exports or related entities during the four-year limitations period applicable to the breach of contract claim (UCC 2-725; see Benn v Benn, 82 AD3d 548, 548 [2011]; Uniflex, Inc. v Olivetti Corp. of Am., 86 AD2d 538, 539 [1982]), or that none of the alleged misrepresentations in connection with such sales occurred within the six-year limitations period applicable to the fraud and negligent misrepresentation claims (CPLR 203[g], 213[1], [8]).

The IAS court properly denied so much of defendants' motion as sought dismissal on the [*2]ground of lack of personal jurisdiction over Vikram Kapoor. It is undisputed that there were other means of acquiring jurisdiction over his person other than personal service in New York. Thus, Kapoor cannot establish an essential element of the immunity defense to personal jurisdiction (see Olbi USA v Agapov, 294 AD2d 139 [2002]; Brause 59 Co. v Bridgemarket Assoc., 216 AD2d 200, 201 [1995]).

Defendants failed to meet their burden to establish that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). There is nothing in the record to suggest that the court did not properly consider the relevant factors (see Pahlavi at 479).

Discovery

Moore v Federated Dept. Stores, Inc., 2012 NY Slip Op 03112 (1st Dept., 2012)

Any right of direct appeal from the intermediate orders terminated with entry of the final judgment dismissing this wrongful termination action for failure to prosecute (see Matter of Aho, 39 NY2d 241, 248 [1976]). Plaintiff did not appeal from the final judgment, and there is no basis for deeming his appeals from the intermediate orders as having been taken from the subsequent judgment (cf. CPLR 5501[c]; 5520[c]).

Were we to consider plaintiff's arguments on appeal, we would nonetheless find them unavailing. The court properly denied plaintiff's motions to strike and compel, as there was no basis in the record to find defendants' conduct in the discovery process to be willful, contumacious, or in bad faith (see Ayala v Lincoln Medical & Mental Health Center, 92 AD3d 542 [2012]). With respect to the court's imposition of sanctions upon plaintiff's counsel, counsel did not appeal from the order or the subsequent judgment awarding sanctions, and plaintiff was not aggrieved by the award and lacks standing to challenge it (see generally CPLR 5511[a]; Matter of Kyle v Lebovits, 58 AD3d 521 [2009], lv dismissed in part and denied in part 13 NY3d 765 [2009], cert denied __ US __ , 130 S Ct 1524 [2010]). Plaintiff was also not aggrieved by the grant of defendant Macy's motion to compel discovery, as plaintiff did not oppose the motion (see Darras v Romans, 85 AD3d 710, 711 [2011]). To the extent plaintiff challenges the denial [*2]of his motion for a stay of enforcement of the order entered July 16, 2010 pending his appeal from the order, his argument is moot (see Diane v Ricale Taxi, Inc., 26 AD3d 232, 232 [2006]).

Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 2012 NY Slip Op 02598 (1st Dept., 2012)

In granting the motion to dismiss as against Albert Nasser for lack of personal jurisdiction, Supreme Court stated that it was vacating the judgment as against him. However, the judgment in the record on appeal names Albert Nasser as a defendant from whom plaintiffs have recovery, and it is that judgment that we affirm. We find that plaintiffs made a prima facie showing that Albert is subject to jurisdiction in New York through evidence that in the first three months of 2008, he actively traded in the New York-based Merrill Lynch accounts of Inversiones, his personal holding company, and that he participated by telephone in a March 2008 meeting with Merrill Lynch in New York concerning the trading activities at issue in this case (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; compare OneBeacon Am. Ins. Co. v Newmont Min. Corp., 82 AD3d 554, 555 [2011] [no evidence that defendant exercised control over the corporation that purchased insurance policies issued by insurers with principal places of business in New York]).

The Nassers' repeated failure to comply with discovery deadlines or offer a reasonable excuse for their noncompliance with discovery requests, as well as their counsel's [*2]misrepresentations in open court as to the cause of one of their violations, give rise to an inference of willful and contumacious conduct warranting the entry of judgment against them (see Turk Eximbank-Export Credit Bank of Turkey v Bicakcioglu, 81 AD3d 494 [2011]). The Nassers were appropriately warned that judgment would be entered against them if their discovery responses were found by the Special Referee to be noncompliant with plaintiffs' requests (see id.; cf. Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 194 [1998]).

Zimbardi v City of New York, 2012 NY Slip Op 02574 (1st Dept., 2012)

Contrary to plaintiff's contention, the City produced documents relevant to its knowledge of the alleged dangerous condition and, in any event, it was plaintiff's burden to show that the City had prior written notice of the alleged defect, which she failed to do. Nor did she move for sanctions based on the City's alleged wilful failure to produce documents (see CPLR 3126).

Zinger v Service Ctr. of N.Y., Inc., 2012 NY Slip Op 02591 (1st Dept., 2012)

Plaintiff's requests for vehicular insurance policies and governmental filings were irrelevant to his alter-ego claim against the individually named defendant. However, the requests concerning the corporate defendant's bank accounts and credit cards seek documents and information of the type that would yield evidence of misuse of the corporate form (see e.g. Horizon Inc. v Wolkowicki, 55 AD3d 337 [2008]). Accordingly, we find that such records and information, to the extent limited to the period of plaintiff's employment plus one year, are "material and necessary" for the prosecution of the action (CPLR 3101[a]).

Carnegie Assoc. Ltd. v Miller, 2012 NY Slip Op 02422 (1st Dept., 2012) (note the dissent)

The motion court erred in striking the complaint and reply to defendants' counterclaims since neither CPLR § 3126 nor 22 NYCRR 202.26(e) authorizes this sanction under the circumstances. While CPLR § 3126 authorizes the striking of a party's pleadings, this extreme sanction is only authorized when a party "refuses to obey an order for disclosure or willfully refuses to disclose information which the court finds ought to have been disclosed" (CPLR § 3126) (emphasis added). Thus, by its express terms the sanction prescribed by CPLR § 3126 is warranted only upon a party's failure to comply with discovery requests or court orders mandating disclosure (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1988]; Henry Rosenfeld, Inc. v Bower & Gardner, 161 AD2d 374, 374-375 [1990] [dismissal of a party's pleading appropriate when a party "disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR"]; Bassett v Bando Sangsa Co., 103 AD2d 728, 728 [1984]). Here, where plaintiff had already been sanctioned for its failure to provide discovery and where defendants premised the instant motion to strike plaintiff's pleadings primarily on plaintiff's [*2]failure to proceed with court-ordered mediation, CPLR § 3126 simply does not apply.

Similarly, despite plaintiff's conceded failure to proceed with the court-ordered mediation, it was also error to strike its pleadings pursuant to 22 NYCRR 202.26(e). While 22 NYCRR 202.26 authorizes the trial court to schedule pretrial conferences, a mediation, pursuant to Rule 3 of the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70[g]), is not a pretrial conference. More importantly, even if this rule did apply, the only sanction authorized by 22 NYCRR 202.26(e) for a party's failure to appear at a pretrial conference is "a default under CPLR § 3404," which initially only authorizes the striking of the case from the court's trial calendar. Accordingly, here, striking plaintiff's pleadings, which by operation of law resulted in dismissal of this action is not warranted pursuant to 22 NYCRR 202.26(e).

While we agree with the dissent that plaintiff's conduct was egregious, we nevertheless find that the sanction imposed by the motion court, namely, dismissal of plaintiff's complaint and the striking of its reply to defendant's counterclaims was simply not permitted. We further note that, here, plaintiff was in fact penalized for its conduct inasmuch as the motion court granted defendants' motion for costs and fees incurred as a result of plaintiff's failure to proceed to mediation.

In support of its argument that the motion court's order was appropriate, the dissent partly relies on Rule 8(h) of the Commercial Division, Supreme Court, New York County, Rules of the Alternative Dispute Resolution Program. However, the dissent alone raises this argument, one which has never been advanced by any of the parties, either on appeal or below. Therefore, we should not consider it (Misicki v Caradonna, 12 NY3d 511, 519 [2009] ["We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made"]). Moreover, contrary to the dissent's remaining position, 22 NYCRR 202.70(g) Rule 12 does not avail plaintiff since like 22 NYCRR 202.26(e), the dismissal promulgated by Rule 12, which is made more clear by its reference to 22 NYCRR 202.27, is for the failure to appear at a conference and not for the failure to proceed to mediation.

Filatava v Rome Realty Group LLC, 2012 NY Slip Op 02261 (1st Dept., 2012)

Defendant appeals from the striking of its answer as a discovery sanction pursuant to CPLR 3126. It is undisputed that defendant violated three express orders to produce documents responsive to plaintiffs' requests. More egregiously, defendant knew it had no business records of the subject premises, as it failed to retain any records when it sold the premises two months after the instant complaint was filed. Yet, it concealed this information from the court and plaintiffs for some two years. As such, there was ample evidence to support the IAS court's [*2]finding that defendant had wilfully delayed and failed to fulfill its obligations in discovery (cf. Banner v New York City Hous. Auth., 73 AD3d 502, 503 [2010]).

Ellis v Park, 2012 NY Slip Op 01864 (1st Dept., 2012)

Dismissal of the complaint was an improvident exercise of discretion, since defendants failed to "show[] conclusively that [plaintiff's] failure to disclose was wilful, contumacious or in bad faith" (Christian v City of New York, 269 AD2d 135, 137 [2000]; see also Mateo v T & H Enters., 60 AD3d 411 [2009]). Contrary to the motion court's findings, the record does not support the view that plaintiff repeatedly refused to comply with orders regarding disclosure. The argument that plaintiff responded only to defendant Prudential's demand for a bill of particulars and not the demand of defendants Parks, is belied by plaintiff's responses to the demand.

Moreover, the November 16, 2009 preliminary conference order directed plaintiff to be deposed on January 6, 2010. However, during a subsequent telephone conference with the court, plaintiff and the Parks agreed to postpone the deposition to a mutually convenient date. Thus, the fact that plaintiff was not deposed by January 6, 2010 does not constitute disobedience of a court order. Plaintiff appeared and was deposed on two dates set by the court and although it is [*2]true that on the third day of her deposition she said she could not stay beyond 11:45 A.M., she provided a reasonable explanation for having to leave and her counsel was actually engaged later that day.

Rosario v Vasquez, 2012 NY Slip Op 01874 (1st Dept., 2012)

Contrary to the motion court's finding, depositions are not needed, since Guzman-Sosa had personal knowledge of the facts (see Avant, 74 AD3d at 534).

Accent Collections, Inc. v Cappelli Enters., Inc., 2012 NY Slip Op 03121 (2nd Dept., 2012)

" The Supreme Court has broad discretion in the supervision of discovery, and its determinations should not be disturbed on appeal unless improvidently made'" (Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140, quoting Casabona v Huntington Union Free School Dist., 29 AD3d 723, 723). Here, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to vacate the trial readiness order based upon its determination that, pursuant to a compliance conference order, the additional discovery sought by the plaintiff was waived (see Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518; cf. Summers v Kardex Sys., 210 AD2d 216; see generally Foster v Herbert Slepoy Corp., 74 AD3d at 1140; Casabona v Huntington Union Free School Dist., 29 AD3d at 723).

Crawford v Village of Millbrook, 2012 NY Slip Op 03128 (2nd Dept., 2012)

The Supreme Court providently exercised its discretion in denying the plaintiff's motion on the eve of trial to admit the testimony of a newly identified witness. The plaintiff failed to disclose this witness until six years after commencing the action, and failed to provide a reasonable explanation for his delay in disclosing the identity of the witness (see CPLR 3101; Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376; Mayorga v Jocarl & Ron Co., 41 AD3d 132, 134; Ortega v New York City Tr. Auth., 262 AD2d 470).

Colandrea v Choku, 2012 NY Slip Op 03127 (2nd Dept., 2012)

In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff was at fault in the happening of the accident (see Vainer v DiSalvo, 79 AD3d at 1024; Yelder v Walters, 64 AD3d 762, 764). To the extent the defendants suggest the possibility that the accident might have been avoided, or that the plaintiff may have been speeding, such assertions, upon this record, are completely speculative and inadequate to withstand summary judgment (see Socci v Levy, 90 AD3d 1020; Loch v Garber, 69 AD3d at 816; Berner v Koegel, 31 AD3d 591, 592; Jacino v Sugerman, 10 AD3d 593, 595). Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.

The Supreme Court improvidently exercised its discretion, however, in denying those branches of the defendants' timely motion which were to (a) vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a deposition and submit to an independent physical examination. "While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745). Here, although the defendants may have waived their right to conduct a deposition and independent physical examination of the plaintiff by their failure to schedule and complete the deposition and examination by the dates set forth in a preliminary conference order, the circumstances of this case warranted relieving the defendants of the waiver, particularly since there was no prejudice to the plaintiff (see Barbosa v Capolarello, 52 AD3d 629, 629; High Point of Hartsdale I Condominium v AOI Constr., Inc., 31 AD3d 711; Venia v 18-05 215th St. Owners, 288 AD2d 463; Poltorak v Blyakham, 225 AD2d 600). Accordingly, the Supreme Court should have granted those branches of the defendants' motion which were to (a) vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a deposition and submit to an independent physical examination.

Counterclaim

Berroa v Misrahi, 2012 NY Slip Op 02814 (1st Dept., 2012)

Contrary to Misrahi's contention, plaintiff's default in replying to his counterclaim is not the equivalent of an answer that fails to deny the substantive allegations of the complaint and is deemed an admission of those allegations (see Ballard v Billings & Spencer Co., 36 AD2d 71, 74 [1971]). In any event, the counterclaim was correctly dismissed in light of the finding in favor of plaintiff on the case in chief.

Place of the wrong

Gianvito v Premo Pharm. Labs., Inc., 2012 NY Slip Op 02066 (1st Dept., 2012)

In these product liability actions, plaintiffs allege that they suffered injury due to in utero exposure to the estrogen drug Diethylstilbestrol (DES), and they urge application of the "market share" theory of liability. The law to be applied in DES cases is the law of "the place of the wrong," which is considered to be "the place where the last event necessary to make the actor liable occurred" (Kush v Abbott Labs., 238 AD2d 172, 173 [1997] [internal quotation marks omitted]). Here, the unrefuted evidence demonstrates that plaintiffs' mothers were residents of New Jersey while pregnant, that the mothers ingested DES while in New Jersey, that they received medical treatment in New Jersey, and that plaintiffs were born in New Jersey. Accordingly, the last event to make defendant DES manufacturer liable clearly occurred in New Jersey, and thus New Jersey law applies (see id.).

New Jersey has not formally adopted a market share theory of liability in DES or similar cases (see Namm v Charles E. Frosst and Co., Inc., 178 NJ Super 19, 427 A2d 1121 [1981]; Shackil v Lederle Laboratories, 116 NJ 155, 561 A2d 511 [1989], revg 219 NJ Super 601, 530 A2d 1287 [1987]; see also Matter of New York County DES Litig., 281 AD2d 173 [2001]). Contrary to plaintiffs' contention, such a theory cannot be found based on dicta from certain New Jersey appellate courts (i.e., Shakil, 116 NJ at 191, 561 A2d at 529; Moreno v Am. Home Products, Inc., 2010 WL 4028605, 2010 NJ Super Unpub LEXIS 1537 [NJ Super Ct App Div, July 12, 2010, No. A-3935-07T2], cert denied 205 NJ 101, 13 A3d 364 [2011]). Moreover, to the extent New Jersey law is unsettled on the issue, we decline to expand the law therein to allow plaintiffs to allege a market share theory (Kush, 238 AD2d at 173). Lastly, to the extent that two of the four plaintiffs have been able to identify the drug manufacturer responsible for their alleged DES-related injuries, they cannot rely on the market share theory (see Lyons v Premo Pharm. Laboratories, Inc., 170 NJ Super 183, 192, 406 A2d 185, 190 [1979], cert denied 82 NJ 267, 412 A2d 774 [1979]).

Present sense impression

Matter of Matter of Allstate Ins. Co. v Stricklin, 2012 NY Slip Op 01812 (2nd Dept., 2012)

Contrary to the appellants' contention, the police accident report was not admissible under the present sense exception to the hearsay rule. To be admissible under this exception, a [*2]statement must be made "substantially contemporaneously" with the witness's observations, and the declarant's description of the relevant events must be "sufficiently corroborated by other evidence" (People v Brown, 80 NY2d 729, 734). As stated by this Court in the case of Matter of Phoenix Ins. Co. v Golanek (50 AD3d 1148, 1150):

"After [the eyewitness] wrote [the plate] number on a piece of paper, [he] was no longer relying upon a present sense of the number, but was relying entirely on the contents of [his] own writing [and thus] . . . the police accident report generated sometime later did not reflect a present sense impression rather than a recalled or recast description of events that were observed in the recent past' (People v Vasquez, 88 NY2d 561, 575 [1996])."

Morever, the evidence at the hearing did not establish how much time elapsed between the imparting of the license plate information to the officer and the preparation of the police accident report. In addition, it was not established that the officer who received the piece of paper at the accident scene was the same one who prepared the police report. Moreover, even assuming that the license plate information was "substantially contemporaneous" with the unidentified witness's observation, there was insufficient evidence of corroboration (cf. Matter of Irizarry v Motor Veh. Indem. Corp., 287 AD2d 716).

Accordingly, under all of the circumstances, it was error to admit the police report into evidence. Since there was no other evidence that the vehicle insured by Autoone was involved in the subject accident, Allstate's petition to stay arbitration of Stricklin's uninsured motorist claim should have been denied, and the proceeding dismissed.

3043. 3126: pot meet kettle

CPLR R. 3043 Bill of particulars in personal injury actions

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Anderson v Ariel Servs., Inc., 2012 NY Slip Op 02038 (1st Dept., 2012)

The motion court did not improvidently exercise its discretion in denying defendants' motions to the extent that they sought dismissal and/or preclusion (see CPLR 3126; see also Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Preclusion is not warranted since the record reflects that defendants themselves did not comply timely with the first preclusion order (see e.g. DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [2011]). Moreover, plaintiff proffered a reasonable excuse for the delay, including defendants' consent thereto, and the verified complaint, which alleged that plaintiff was injured when she was struck by defendants' vehicle while crossing the street in a crosswalk, with the right of way, evidenced the existence of a meritorious claim (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

Plaintiff's third verified bill of particulars, which, inter alia, alleges that she had a third surgery, to remove hardware from her left tibia, the insertion of which hardware had been disclosed in an earlier bill of particulars, was a supplemental bill of particulars which concerned the "continuing consequences" of her previously identified injury, and thus, did not require prior leave of the court (Shahid v New York City Health & Hosps. Corp., 47 AD3d 798, 800 [*2][2008]; see CPLR 3043[b]). Since discovery relating to the third surgery had not previously been ordered, the court's direction of related disclosure, rather than sanctions, was appropriate.

Hear and determine, hear and report

CPLR § 4301 Powers of referee to determine

CPLR § 4201 Powers of referees to report

CPLR § 4201 Decision

Kucherovsky v Excel Med. & Diagnostic, P.C., 2012 NY Slip Op 02047 (1st Dept., 2012)

The reference in this action was clearly one to hear and determine (see CPLR 4301) rather than to hear and report (see CPLR 4201). Consequently, the referee possessed "all the powers of a court in performing a like function" (CPLR 4301), and his decision "shall stand as the decision of a court" (CPLR 4319). Since the actions of referees when they are assigned to determine an issue are tantamount to those of any sitting Supreme Court Justice, the Supreme Court may only review whether the referee exceeded the scope of the issues delineated in the order of reference (see e.g. Cohen v Akabas & Cohen, 79 AD3d 460, 461 [2010]).

On the face of the record

Interboro Ins. Co. v Fatmir, 89 AD3d 993 (2nd Dept., 2011)

To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy (see Novick v Middlesex Mut. Assur. Co., 84 AD3d 1330 [2011]; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855, 856 [2009]; Schirmer v Penkert, 41 AD3d 688, 690 [2007]; Zilkha v Mutual Life Ins. Co. of N.Y., 287 AD2d 713, 714 [2001]). A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented (see Insurance Law § 3105 [b]; Novick v Middlesex Mut. Assur. Co., 84 AD3d at 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d at 856). "To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application" (Schirmer v Penkert, 41 AD3d at 690-691).

Here, the plaintiff insurance company established its prima facie entitlement to judgment as a matter of law by demonstrating that its insured made misrepresentations in his application for homeowner's insurance, and that it would not have issued the subject policy had the insured disclosed that he did not reside in the subject premises because dwellings that are not owner occupied are deemed an unacceptable risk under its underwriting guidelines (see Varshavskaya v [*2]Metropolitan Life Ins. Co., 68 AD3d at 856). In opposition, the appellant failed to raise a triable issue of fact. Although the appellant argued in opposition that the plaintiff failed to timely disclaim coverage pursuant to Insurance Law § 3420 (d), a disclaimer pursuant to Insurance Law § 3420 (d) was not required because the policy only provided liability coverage to the insured for premises which he and his household occupied for residential purposes and, thus, "the policy never provided coverage" for the claim at issue (Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57, 60 [2000]; see generally Zappone v Home Ins. Co., 55 NY2d 131, 138 [1982]). While the plaintiff did not argue in the Supreme Court that a disclaimer was not required, "[o]n appeal, a respondent may [as here] proffer in support of affirmance any legal argument that may be resolved on the record, regardless of whether it has been argued previously, if the matter is one which could not have been countered by the appellant had it been raised in the trial court" (Sega v State of New York, 60 NY2d 183, 190 n 2 [1983]; see Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216 [2011]; Buywise Holding, LLC v Harris, 31 AD3d 681, 682 [2006]).

3123

CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs

Saline v Saline, 2012 NY Slip Op 03162 (2nd Dept., 2012)

Contrary to the defendant's contentions, the trial court properly admitted into evidence certain documents admitted by him to be authentic and upon which it based its findings of fact (see CPLR 3123; Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103; Ocampo v Pagan, 68 AD3d 1077).