Category: Appellate Division

Hearsay, standing alone, is not enough. Excited Utterance.

Mermelstein v Singer, 2011 NY Slip Op 04736 (App. Div., 1st 2011)

The record demonstrates that the IRA account was solely in plaintiff's name and that all the funds and securities in the account came from other IRA accounts solely in his name (see Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 50 [2006]). In support of her argument that her late father had some ownership interest in the account, defendant relies solely on hearsay conversations and a hearsay document, which, without more, cannot withstand summary judgment (see Narvaez v NYRAC, 290 AD2d 400, 400-401 [2002]).

Matter of Odalis F., 2011 NY Slip Op 04738 (App. Div., 1st 2011)

The presentment agency's case rested on a 911 call made by a nontestifying complainant, who was appellant's older brother. We conclude that the call was improperly admitted as an excited utterance.

An extrajudicial statement is admissible under the excited utterance exception to the hearsay rule when the declarant is "so influenced by the excitement and shock of [a startling] event that it is probable that he or she spoke impulsively and without reflection" (People v Caviness, 38 NY2d 227, 231 [1975]). "[T]he time for reflection is not measured in minutes or seconds, but rather is measured by facts" (People v Vasquez, 88 NY2d 561, 579 [1996] [internal quotation marks omitted]).

In People v Robinson (282 AD2d 75 [2001]) we considered the admissibility of a 911 call under the analogous present sense impression exception to the hearsay rule. We held that a victim's 911 call made several minutes after a robbery was inadmissible where the declarant called her employer to report the robbery before calling the police; it could not be said that she did not have time to reflect on the event before calling 911.

Notwithstanding the different bases for presuming the trustworthiness of statements under the respective hearsay exceptions, a declarant's activities before making the statement at issue are relevant under both. Here, the complainant's conduct prior to calling 911, like that of the declarant in Robinson, indicates a capacity for deliberation and reflection. Although the testimony did not establish how much time passed between the time appellant allegedly threatened the complainant with a knife and the time he placed the 911 call, it is clear that several intervening events occurred. The complainant called his mother on the phone and waited for her  to get home. When his mother arrived, the complainant asked her whether he should call the police.

Moreover, other than the recording of the 911 call itself, there is no evidence of the existence of the allegedly startling event that led to the alleged excited utterance.

 

 

I’m back with the no-fault (bumped)

There are some more that vanished off the slip op site.  I'll check again tomorrow.

Update:  The cases that dissapeared, reapeared.  And there were a few new ones.

App. Div. 2nd

NYU-Hospital for Joint Diseases v Esurance Ins. Co., 2011 NY Slip Op 04436 (App. Div., 2nd 2011)

"A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4[c][11]) and must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated'" (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996, quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664). A timely denial of a no-fault insurance medical claim alone does not, however, avoid preclusion where the "denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law" (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665).

Here, the hospital established its prima facie entitlement to judgment as a matter of law based on the untimeliness of the denial of claim. It submitted evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564).

In opposition to the motion, however, Esurance raised a triable issue of fact as to whether the denial of claim was timely issued by submitting the affidavit of an employee with knowledge of its "standard office practices or procedures designed to ensure that items were properly addressed and mailed" (St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), wherein he attested that a denial of claim was timely issued to the hospital. We note that while the denial of claim contained errors, they were not significant by themselves, and did not pose any possibility of confusion or prejudice to the hospital under the circumstances; thus, the denial was not rendered a nullity (see St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737, 738).

Further, Esurance raised a triable issue of fact as to whether Cancian was "injured as a result of operating a motor vehicle while in an intoxicated condition" (Insurance Law § 5103[b][2]). Contrary to the hospital's contention, the personal observations of the police officer present at the scene of the accident as recorded in the police accident report were properly considered by the Supreme Court under the business record exception to the hearsay rule (see CPLR 4518[a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).

NYU-Hospital for Joint Diseases v American Intl. Group, Inc., 2011 NY Slip Op 04437(App. Div., 2nd 2011)

The plaintiffs made a prima facie showing that the plaintiff Westchester Medical Center (hereinafter the hospital) was entitled to judgment as a matter of law on the third cause of action to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant insurer, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046; Westchester Med. Ctr. v Progressive Cas. Ins. Co. 51 AD3d 1014, 1017; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020).

In opposition, the insurer failed to raise a triable issue of fact as to whether it had timely denied the claim. Contrary to the insurer's contention, its letter to the hospital stating that payment of the claim was delayed "pending adjuster's review" and "investigation" did not serve to toll the 30-day statutory period (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536), and, in any event, was not a timely request for verification made within 10 business days after the insurer's receipt of the hospital's claim (see 11 NYCRR 65-3.5[a]). 

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929, 930). Accordingly, the Supreme Court should have granted that branch of the hospital's motion which was for summary judgment on the third cause of action.

NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 2011 NY Slip Op 04219 (App. Div., 2nd 2011)

The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting, among other things, the requisite billing forms, an affidavit from its third-party biller, the certified mail receipt, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co., 82 AD3d 723; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832). In opposition, the defendant failed to raise a triable issue of fact as to whether it timely and effectively denied the plaintiff's claim (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). "A proper denial of claim must include the information called for in the prescribed denial of claim form" (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; see 11 NYCRR 65-3.4[c][11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664). Here, even assuming that the denial of claim form issued by the defendant was timely and was properly mailed to the plaintiff, the form "was fatally defective in that it omitted numerous items of requested information, and thus was incomplete" (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565; see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929; compare St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733). The denial also incorrectly listed Raquel Uviles as the applicant for benefits instead of the plaintiff (see St. Vincent's Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565). Accordingly, even if the denial was timely mailed, it was fatally defective (see St. Vincent's Hosp. & Med. Ctr v New Jersey Mfrs. Ins. Co., 82 AD3d at 871; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d at 929; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565).

For the same reasons, the defendant, in support of its cross motion for summary judgment dismissing the complaint, failed to make a prima facie showing that it timely denied the claim.

The defendant's contention that the action should be dismissed as premature is improperly raised for the first time on appeal, and therefore is not properly before this Court (see Matter of Panetta v Carroll, 62 AD3d 1010, 1010; KPSD Mineola, Inc. v Jahn, 57 AD3d 853, 854). Contrary to the defendant's contention, it does not present a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture (see Matter of Panetta v Carroll, 62 AD3d at 1010; KPSD Mineola, Inc. v Jahn, 57 AD3d at 854). Accordingly, this argument may not be reached for the first time on appeal.

App Term 2nd

Active Imaging, P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 50945(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the services rendered were medically necessary, as all elements of plaintiff's case had been established and defendant had timely denied the claim on the ground of lack of medical necessity. At the nonjury trial, defendant's attorney requested an adjournment to "secure the appearance of [its] witness in this matter." The Civil Court denied the application and issued a decision awarding judgment in defendant's favor. Defendant appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

It is well settled that an application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]), and the court's determination will not be disturbed on appeal absent an improvident exercise of that discretion (see Wolosin v Campo, 256 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). We find that the Civil Court did not improvidently exercise its discretion in declining to grant defendant an adjournment. Accordingly, the judgment is affirmed.

Queens Brooklyn Med. Rehab, P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50978(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court entered June 19, 2009 as granted the branch of defendant's cross motion seeking to compel plaintiff to provide bank account information and produce copies of its corporate tax returns and its billing and management agreements, and provided that the complaint would be dismissed in the event plaintiff failed to comply with the order. Subsequent to the entry of the June 19, 2009 order, the Civil Court entered an order dismissing the action. The dismissal of the action rendered this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 2007 NY Slip Op 50673[U], 15 Misc 3d 131[A] [App Term, 2d & 11th Jud Dists 2007]; Vista Surgical Supplies, Inc. v Lumbermans Mut. Cas. Co., 13 Misc 3d 138[A], 2006 NY Slip Op 52221[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

LDE Med. Servs., P.C. v Encompass Ins., 2011 NY Slip Op 50979(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Contrary to defendant's contention, the affidavit submitted by plaintiff's billing administrator was sufficient to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). However, as the pertinent facts concerning the failure of plaintiff's assignor to appear for an examination under oath are the same as those in LDE Med. Servs., P.C. v Encompass Ins. (29 Misc 3d 130[A], 2010 NY Slip Op 51845[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), for the reasons stated in that case, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied. We reach no other issue.

LDE Med. Servs., P.C. v Interboro Ins. Co., 2011 NY Slip Op 50946(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Contrary to the Civil Court's determination, "appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim form is submitted" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, although the first IME scheduling letter was sent to the assignor before defendant received plaintiff's claim forms, the scheduling letter was not a nullity (id.).

However, since defendant's moving papers did not contain evidence in admissible form from anyone with personal knowledge of the assignor's nonappearances at the IMEs, defendant failed to establish that the assignor had failed to appear at the IMEs (see id.; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]). Although defendant annexed to its reply papers affirmations from each of the doctors who were to perform the assignor's IMEs, in which they attested to the nonappearance of the assignor at the scheduled IMEs, said proof was improperly submitted for the first time in defendant's reply papers (see Bednoski v County of Suffolk, 67 AD3d 616 [2009]; Haggerty v Quast, 48 AD3d 629 [2008]; Jefferson v Netusil, 44 AD3d 621 [2007]). Consequently, defendant's cross motion for summary judgment was properly denied.

While defendant argues that plaintiff's motion for summary judgment should have been denied as premature since plaintiff failed to provide responses to defendant's discovery demands, defendant failed to show that discovery was needed in order to establish the existence of a triable issue of fact (see CPLR 3212 [f]; Delta Diagnostic Radiology, P.C. v Inteboro Ins Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, plaintiff's motion for summary judgment was properly granted.

Rogy Med., P.C. v Geico Ins. Co., 2011 NY Slip Op 50990(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant established that the denial of claim forms at issue were timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to the claim at issue in plaintiff's first cause of action, which was denied on the ground of lack of medical necessity, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor's conclusion that there was a lack of medical necessity for the services at issue. As a result, defendant demonstrated the existence of a triable issue of fact with respect to plaintiff's first cause of action (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Similarly, with respect to the claim at issue in the second cause of action, an issue of fact was presented as to whether plaintiff is seeking to recover in excess of the amount permitted by the worker's compensation fee schedule. Accordingly, the judgment is reversed, the order entered November 19, 2009 is vacated and plaintiff's motion for summary judgment is denied.

Omega Diagnostic Imaging, P.C. v MVAIC, 2011 NY Slip Op 50867(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011) 

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC), pursuant to CPLR 5015, to vacate a default judgment entered against it. MVAIC's proffered defense lacks merit since Insurance Law § 5214 does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted (see Craniofacial Pain Mgt. v MVAIC, 29 Misc 3d 130[A], 2010 NY Slip Op 51843[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp., 25 Misc 3d 138[A], 2009 NY Slip Op 52363[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, it is unnecessary to consider whether MVAIC demonstrated a reasonable excuse for its default (see Toland v Young, 60 AD3d 754 [2009]).

For more about this case, check out the comments over by JT.

Central Radiology Servs., P.C. v Commerce Ins. Co., 2011 NY Slip Op 50948(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavit submitted by defendant's claims adjuster was sufficient to establish that defendant's denial of claim forms were timely mailed in accordance with its standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant was not precluded from raising its defense of fraudulent procurement of the insurance policy (cf. Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]). As the affidavits annexed to defendant's motion papers established that the assignor had misrepresented his state of residence, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Plaintiff, as assignee, stands in the assignor's shoes and, thus, may not recover in this action (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC, 12 Misc 3d 8). Accordingly, the judgment is reversed, the order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 2011 NY Slip Op 50949(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant's motion for summary judgment dismissing the complaint, which motion was based upon, among other things, plaintiff's assignor's failure to attend independent medical examinations (IMEs), which had been scheduled by Hudson Valley Medical Consultants (HVMC).

In support of its motion, defendant submitted an affidavit of an employee of HVMC which sufficiently established that the IME requests had been timely mailed in accordance with HVMC's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit of an employee of the office manager of the psychologist who was to perform the IMEs, which was sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant's no-fault specialist demonstrated that the claim denial forms, based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed pursuant to defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff's claim based upon the assignor's failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, ___ AD3d ___, 2011 NY Slip Op 01948 [1st Dept 2011]). Accordingly, the Civil Court's order granting defendant's motion for summary judgment dismissing the complaint is affirmed. In light of our determination, we need not reach the remaining contentions raised on appeal.

Yklik, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50868(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law because it did not demonstrate that defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Since plaintiff failed to establish its prima facie case, we need not consider the sufficiency of defendant's papers in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied.

Pesce, P.J., and Weston J., concur. 

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the judgment in the following memorandum:

The plaintiff provider made a prima facie showing of its entitlement to summary judgment by submitting evidentiary proof that the medical supplies had been provided to plaintiff's assignor. It further submitted irrefutable evidence that the prescribed statutory billing forms had been mailed and received by defendant insurer, and that the claims remained unpaid (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). There is no assertion in the record that a partial payment of the claim was made (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]), therefore, it was incumbent upon defendant to demonstrate a timely denial. In opposition to the motion, defendant submitted the affidavit of an employee who had no personal knowledge of when the denial of claim forms were mailed to plaintiff (Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), therefore, the Civil Court properly granted summary judgment to plaintiff. Accordingly, I vote to affirm the judgment.

Note the dissent.

Radiology Today, P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 21161 (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff contends that the discovery order was improper because, in the answer and in support of its motion to compel discovery, defendant failed to "state[] in detail" the "circumstances constituting the wrong," citing CPLR 3016 (b). There is no requirement that a defense predicated upon the failure to comply with "New York State or local licensing requirement[s]" (Insurance Department Regulations [11 NYCRR] 65-3.16 [a] [12]) be pleaded with particularity pursuant to CPLR 3016 (b) (see generally V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39 [App Term, 2d, 11th & 13th Dists 2009]). In addition, while mere conclusory allegations are never sufficient to obtain discovery with respect to a Mallela-based defense, defendant's motion papers were sufficient to demonstrate that a Mallela-based defense was potentially meritorious. Plaintiff's motion for a protective order, filed nearly four months after defendant had served its supplemental discovery, was untimely (see CPLR 3122 [a]; Fair Price Med. Supply Corp. v ELRAC, Inc., 12 Misc 3d 119, 122 [App Term, 2d & 11th Jud Dists 2006]). The failure of a party to timely challenge the propriety of discovery demands normally "obligate[s] it to produce the information sought" (New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *1 [App Term, 9th & 10th Jud Dists 2009]; see Fausto v City of New York, 17 AD3d 520, 522 [2005]), with the exception of items which are palpably improper or privileged (see Fausto, 17 AD3d at 522; Marino v County of Nassau, 16 AD3d 628 [2005]). As most of the discovery demands were not palpably improper or privileged, and in light of plaintiff's failure to provide any discovery, the judgment, insofar as appealed from, dismissing the complaint in the case at bar is affirmed.

Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff commenced this action to recover assigned first-party no-fault benefits by the service on October 17, 2006 of a summons with endorsed complaint. Defendant defaulted. Approximately two years and four months later, in February 2009, plaintiff moved for the entry of a default judgment. Defendant opposed the motion on the ground that it was supported by insufficient proof, and cross-moved to dismiss pursuant to CPLR 3215 (c). Plaintiff failed to offer any opposition to defendant's cross motion. By order entered February 18, 2010, the Civil Court granted plaintiff's motion to enter a default judgment unless defendant served and filed an answer within 30 days of the date of the order, and implicitly denied defendant's cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corely, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). Upon a review of the motion papers, we find that dismissal of the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed, plaintiff's motion for the entry of a default judgment is denied, and defendant's cross motion to dismiss the complaint is granted.

We Do Care Med. Supply, P.C. v American Tr. Ins. Co., 31 Misc 3d 140(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In support of its cross motion, defendant submitted, among other things, an independent medical examination report which set forth a factual basis and a medical rationale for the doctor's determination that there was a lack of medical necessity for the medical supplies at issue. Defendant's showing that such supplies were not medically necessary was not rebutted by plaintiff.

In light of the foregoing, and the Civil Court's implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, defendant's cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

App Term 1st

Excel Radiology Serv., P.C. v Utica Mut. Ins. Co., 31 Misc 3d 138(A) (App. Term 1st 2011) 

In this action to recover first-party no-fault medical benefits, defendant's motion for summary judgment was properly denied since it failed to establish, prima facie, that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]; cf. Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Given defendant's failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The rest

R.E.G. Flushing Med. PC v Integon Natl. Ins Co, 2011 NY Slip Op 50975(U) (Nass. Dist. Ct. 2011)

In short, although Mr. Gomez's conflicting representations about his residence address raised legitimate issues for investigation, defendant's defense of "rate evasion fraud" (NCGS §58-2-164) was not proven by a preponderance of the evidence submitted. To the contrary, the evidence shows that Mr. Gomez maintained significant, provable ties to the State of North Carolina, including a long standing North Carolina residence address, a North Carolina driver's license, and close family ties with his mother in North Carolina. Accordingly, defendant's evidence fails to establish that Mr. Gomez was not "an eligible applicant" under the definitions of North Carolina law. As a result, defendant remained responsible under the policy for "medical payment coverage" of "reasonable expenses for necessary medical . . . services" that were provided to Mr. Gomez following an accident that occurred in New York State.

Turning to the second issue, the Court concludes, alternatively, that the defense of "rate evasion fraud" must be rejected on the ground that plaintiff is an "innocent third party" within the meaning of North Carolina's "rate evasion fraud" statute. Were this issue to be decided under New York law, the Court would be compelled to follow the lead of the Appellate Term, and to hold that New York's "innocent third party" doctrine protects "only innocent third parties who are injured" by someone who is guilty of fraudulent procurement of insurance. See A.B. Med. Services PLLC v. Commercial Mut. Ins. Co., 12 Misc 3d 8 (App Term, 2006). Thus, under New York caselaw, a health care provider acts "at its peril" when it accepts an assignment of no-fault benefits, and it remains equally subject to a defense that the insurance policy covering the assigned claim was "fraudulently procured" by the insured. Id.

The issue, here, is very similar, but the result ends up differently when analyzed under canons of statutory construction which require a court to give meaning to each part of a statute. As the Courts in North Carolina have recognized: "every part of the law shall be given effect if this can be done by any fair and reasonable intendment." Huntington Properties, LLC v. Currituck County, 153 NC App 218, 224 (2002), quoting In re Hickerson, 253 NC 716, 721 (1952).

Reading North Carolina's "rate evasion fraud" law as a whole, the Court cannot envision any class of persons or entities who would fall into the "innocent third party" category, except for the assignees and subrogees of the insured. The statutory "innocent third party exception" comes into play only if an insurer is asked to pay a claim "arising out of bodily injury or property damage suffered by the applicant" (emphasis added). So worded, the "innocent third party" language logically extends those entities who are involved in treating "bodily injuries" or remedying "property damage" that the insured has suffered. Plaintiff, a medical provider, clearly falls into this category. Consequently, the Court sees no basis for limiting the "innocent third party" exception to "innocent third parties who are injured" by the insured. Cf. A.B. Med. Services, PLLC v. Commercial Mut. Ins. Co., supra.

Admittedly, the issue is not free from doubt, and the Court has found no North Carolina cases in point. Nor has it found any illuminating legislative history. But in the absence of contrary authority from North Carolina, the Court believes that penalizing plaintiff would be unwarranted. The plaintiff is an "innocent third party." It provided medical services to a person who was insured by the defendant. It took an assignment in good faith, expecting to be paid. If Mr. Gomez committed a fraud, plaintiff was not a
party to it. Accordingly, the Court concludes that plaintiff, as an "innocent third party", should not be foreclosed from obtaining payment for its services solely on account of alleged "rate evasion fraud" by the insured.

For these reasons, the defense set forth in defendant's denials is rejected, upon the facts and as a matter of law. Judgment is granted to plaintiff. Submit Judgment on Notice.

Disclosure, lots of it

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

CPLR § 4504. Physician, dentist, podiatrist, chiropractor and nurse

CPLR R. 3120 Discovery and production of documents and things for inspection, testing, copying or photographing

CPLR § 3101 Scope of disclosure

CPLR R. 3124 Failure to disclose; motion to compel disclosure

22 NYCRR 202.21 Note of issue and certificate of readiness

Congel v Malfitano, 2011 NY Slip Op 04406 (App. Div., 2nd 2011)

Contrary to the defendant's contentions, the Supreme Court providently exercised its discretion in denying that branch of his cross motion which was for leave to amend his answer to assert counterclaims pursuant to Partnership Law §§ 73 and 74. Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b]), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see Brooks v Robinson, 56 AD3d 406, 407; Scofield v DeGroodt, 54 AD3d 1017, 1018; Lucido v Mancuso, 49 AD3d 220, 227). Here, the defendant's proposed amended counterclaims were patently devoid of merit.

CPLR 3101(a) provides for, inter alia, "full disclosure of all matter material and necessary in the prosecution or defense of an action." Although the phrase "material and necessary" must be "interpreted liberally" in favor of disclosure so long as the information sought meets the test of "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69-70), a party does not have the right to uncontrolled and unfettered disclosure (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408, 410; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531). Further, the Supreme Court has broad discretion over the supervision of disclosure, and its determination will not be disturbed absent an improvident exercise of discretion (see Spodek v Neiss, 70 AD3d 810, 810; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694, 695; Cabellero v City of New York, 48 AD3d 727, 728).

On the defendant's prior appeal, this Court remitted the matter to the Supreme Court, Dutchess County, for, inter alia, further proceedings on the issue of damages caused to the plaintiffs by the defendant's wrongful dissolution of the Poughkeepsie Galleria Company Partnership, as well as a determination of the value of the defendant's interest in that partnership at the time of the wrongful dissolution (see Congel v Malfitano, 61 AD3d 810; Partnership Law § 69[2][c][II]). Given that the remaining issues to be resolved in this matter are narrow (see Partnership Law § 69[2][c][II]), the Supreme Court did not improvidently exercise its discretion in limiting the scope of discovery and providing for an expedited discovery schedule.

Thompson v Dallas BBQ, 2011 NY Slip Op 04451 (App. Div., 2nd 2011)

Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed'" (Mazza v Seneca, 72 AD3d 754, 754, quoting CPLR 3126). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126[3]; Kihl v Pfeffer, 94 NY2d 118, 122-123; Bernal v Singh, 72 AD3d 716). The drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands is willful and contumacious (see CPLR 3126[3]; Kyung Soo Kim v Goldmine Realty, Inc., 73 AD3d 709; Moray v City of Yonkers, 72 AD3d 766).

Here, there was no such clear showing that the defendants' conduct was willful and contumacious (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to strike the defendants' answer.

Gille v Long Beach City School Dist., 2011 NY Slip Op 04202 (App. Div., 2nd 2011)

While it is unclear whether the school district negligently lost or intentionally destroyed key evidence (see Denoyelles v Gallagher, 40 AD3d 1027; Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343), it is uncontested that the school district is unable to locate the window shade, the very instrumentality giving rise to the infant plaintiff's injuries. However, because the determination of spoliation sanctions is within the broad discretion of the trial court (see Iamiceli v General Motors Corp., 51 AD3d 635; Barnes v Paulin, 52 AD3d 754; Dennis v City of New York, 18 AD3d 599), the matter must be remitted to the Supreme Court, Nassau County, for its determination of the cross motion on the merits (see American Fed. of School Adm'rs, AFL-CIO v Council of Adm'rs & Supervisors, 266 AD2d 417, 418; Polera Bldg. Corp. v New York School Constr. Auth., 262 AD2d 295).

Lopez v Retail Prop. Trust, 2011 NY Slip Op 04008 (App. Div., 2nd 2011)

The Supreme Court, in its discretion, may grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Wigand v Modlin, 82 AD3d 1213; Owen v Lester, 79 AD3d 992; Audiovox Corp. v Benyamini, 265 AD2d 135, 140). The compliance conference order dated February 17, 2010, warning the plaintiff that failure to file a note of issue within 90 days would result in dismissal of the action, did not mandate that all discovery be complete prior to the filing of the note of issue. Even though the defendant Kone, Inc. (hereinafter the defendant), was impeding discovery, the plaintiff filed a conditional note of issue as directed by the compliance conference order. It was not until after the filing of the conditional note of issue that the defendant moved for a protective order with respect to the plaintiff's discovery requests, on the ground that they were untimely. Under these circumstances, the plaintiff's cross motion to compel the defendant to comply with outstanding discovery should have been granted (see Karakostas v Avis Rent A Car Sys., 306 AD2d 381, 382; Schmitt v Carl Meyer's Hof, Inc., 86 AD2d 985).

Olkovetsy v Friedwald Ctr. for Rehabilitation & Nursing, LLC, 2011 NY Slip Op 04015 (App. Div. 2nd 2011)

Pursuant to CPLR 4504(a), information obtained by, among others, professional nursing personnel in attending to a patient in a professional capacity and "which [is] necessary to enable him [or her] to act in that capacity" is privileged. As a general rule, disclosure of the name and address of a nonparty patient who may have been a witness to an alleged act of negligence or malpractice does not violate the patient's privilege of confidentiality of treatment (see Rabinowitz v St. John's Episcopal Hosp., 24 AD3d 530; Hirsch v Catholic Med. Ctr. of Brooklyn & Queens, 91 AD2d 1033, 1034; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530-531), provided that the requesting party "is not seeking to identify the patient by reference to the medical treatment he [or she] received" (Matter of Seymour, 288 AD2d 894, 894).

Contrary to the defendants' contention, in light of the broad range of services provided in a nursing home, the information requested by the plaintiff did not fall within the ambit of CPLR 4504(a) (see generally Rabinowitz v St. John's Episcopal Hosp., 24 AD3d 530; cf. Gunn v Sound Shore Med. Ctr. of Westchester, 5 AD3d 435, 437). Additionally, the information demanded by the plaintiff was necessary to the prosecution of the action and, as limited by the Supreme Court to the period from January 1, 2005, through February 28, 2005, and to only the residents of the decedent's particular unit of residency, the demand was not overly broad or unduly burdensome (see Grant v PALJR, LLC, 64 AD3d 750, 751).

Trueforge Global Mach. Corp. v Viraj Group., 2011 NY Slip Op 04040 (App. Div., 2nd 2011)

The Supreme Court properly denied the defendants' cross motion for summary judgment dismissing the complaint pursuant to General Obligations Law § 5-701(a)(10). "[I]n a contract action[,] a memorandum sufficient to meet the requirements of the Statute of Frauds must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter" (Morris Cohon & Co. v Russell, 23 NY2d 569, 575; see Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 378-379). "If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482, cert denied 498 US 816; see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109). Thus, "a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable" (Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d at 109; see 2004 McDonald Ave. Realty, LLC v 2004 McDonald Ave. Corp., 50 AD3d 1021; Andor Group v Benninghoff, 219 AD2d 573). Further, while General Obligations Law § 5-701(a)(10) applies to contracts implied in law to pay reasonable compensation (see Snyder v Bronfman, 13 NY3d 504), in an action to recover reasonable compensation, "a sufficient memorandum need only evidence the fact of plaintiff's employment by defendant to render the alleged services" (Morris Cohon & Co. v Russell, 23 NY2d at 575-576)."The obligation of the defendant to pay reasonable compensation for the services is then implied" (id. at 576). Contrary to the defendants' contention, they failed to establish their prima facie entitlement to judgment as a matter of law based on the statute of frauds, as certain e-mail correspondence (see General Obligations Law § 5-701[b][4]; Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 AD3d 476, 477; see also Intercontinental Planning v Daystrom, Inc., 24 NY2d at 379; Aloisi v Coin Phones, 157 AD2d 688) was sufficient to set forth an objective standard for determining the compensation to be paid to the plaintiff as a finder's fee, since it was tied to an extrinsic event, i.e., it was expressed as a percentage of the price paid by the defendants for the located acquisition opportunity, thus rendering the terms definite and enforceable (see Tonkery v Martina, 78 NY2d 893; Novello v 215 Rockaway, LLC, 70 AD3d 909; Edge Mgt. Corp. v Crossborder Exch. Corp., 304 AD2d 422; cf. MP Innovations, Inc. v Atlantic Horizon Intl., Inc., 72 AD3d 571).

Furthermore, the Supreme Court did not improvidently exercise its discretion in granting, upon reargument, the plaintiff's motion to compel a deposition of nonparty Neeraj Kochhar. "[A] corporation has the right in the first instance to determine which of its representatives will appear for an examination before trial" (Barone v Great Atl. & Pac. Tea Co., 260 AD2d 417, 417-418; see Aronson v Im, 81 AD3d 577, 577; Nunez v Chase Manhattan Bank, 71 AD3d 967; Mercado v Alexander, 227 AD2d 391). The moving party that is seeking additional depositions has the burden of demonstrating "(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case" (Zollner v City of New York, 204 AD2d 626, 627; see Thristino v County of Suffolk, 78 AD3d 927; Spohn-Konen v Town of Brookhaven, 74 AD3d 1049; Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d 930, 932-933; Nazario v City of New York, 27 AD3d 439; Barone v Great Atl. & Pac. Tea Co., 260 AD2d at 418). Here, the plaintiff satisfied this burden by demonstrating that the representative produced by the defendants for deposition did not have sufficient knowledge of the events giving rise to the complaint (see Nunez v Chase Manhattan Bank, 71 AD3d 967), and that there was a substantial likelihood that Neeraj Kochhar possessed information which was material and necessary to the issue of whether the plaintiff was entitled to payment of a finder's fee (see Nazario v City of New York, 27 AD3d 439; cf. Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d at 932-933).

Waiver

Fernandez v City of New York, 2011 NY Slip Op 04111 (App. Div., 1st 2011)

Plaintiff has waived her claim that defendants' failure to produce "legible" photographs of the underside of the desk after the accident required an adverse inference that such photographs would have provided notice. The record shows that she was aware of the photographs yet filed a note of issue certifying that discovery was complete (see Escourse v City of New York, 27 AD3d 319 [2006]). In any event, the photographs would not have been probative as to notice, since the track was not visible until after the drawer fell.

CPLR § 205(a)

CPLR § 205(a)

Egan v Neghavi, 2011 NY Slip Op 04196 (App. Div., 2nd 2011)

The plaintiff commenced this action to recover damages for medical malpractice and wrongful death on behalf of the decedent, his wife, prior to obtaining letters of administration. The defendants moved to dismiss the complaint with prejudice on the ground that he lacked legal capacity to sue. The Supreme Court dismissed the action without prejudice to the commencement of a new action pursuant to CPLR 205(a). On appeal, the plaintiff contends that, since he ultimately obtained limited letters of administration, the Supreme Court should have granted him leave to amend the caption and complaint instead of dismissing the action. However, the plaintiff did not cross-move or even request such relief in his opposing papers and submitted only expired letters of administration. Under the circumstances, the Supreme Court properly dismissed the complaint without prejudice (see Carrick v Central Gen. Hosp., 51 NY2d 242; George v Mt. Sinai Hosp., 47 NY2d 170; Mendez v Kyung Yoo, 23 AD3d 354; Krainski v Sullivan, 208 AD2d 904; Ballav v Deepdale Gen. Hosp., 196 AD2d 520).

I haven't seen 205 pop up in a while.

Oh, the Experts

 

Corcione v John Dominick Cusumano, Inc., 2011 NY Slip Op 04193 (App. Div., 2nd 2011)

The defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852; Zuckerman v City of New York, 49 NY2d 557, 559). The defendants' examining physician, Dr. Isaac Cohen, concluded in his affirmed report that the plaintiff presented with resolved cervical and lumbar sprains, and that herniations and bulges noted in the plaintiff's magnetic resonance imaging (hereinafter MRI) reports were "of no clinical significance" and caused "no neural compromise." However, the MRI reports, which were reviewed by Dr. Cohen, refer to impingements on the lumbar and cervical neuro canal. Dr. Cohen's report fails to reconcile his conclusion of no neural compromise with the MRI reports reflecting cervical and lumbar neural canal impingements, rendering his opinion conclusory, speculative, and insufficient (see Damas v Valdes, ___ AD3d ___, 2011 NY Slip Op 03022 [2d Dept 2011]; Singh v City of New York, 71 AD3d 1121; Nicholson v Allen, 62 AD3d 766, 767; Zarate v McDonald, 31 AD3d 632, 633; Bennett v Genas, 27 AD3d 601; Giraldo v Mandanici, 24 AD3d 419, 420).

Artis v Lucas, 2011 NY Slip Op 03983 (App. Div., 2nd 2011)

The defendant failed to meet his 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). In support of his motion, the defendant relied upon, inter alia, the affirmed medical report of Dr. Alan M. Crystal. When this doctor examined the plaintiff in February 2010, he noted significant limitations in the range of motion of the lumbar region of the plaintiff's spine (see Ortiz v Orlov, 76 AD3d 1000, 1001; Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989; Smith v Hartman, 73 AD3d 736; Leopold v New York City Tr. Auth., 72 AD3d 906). Although Dr. Crystal indicated that the limitations noted were subjective in nature, he failed to explain or substantiate the basis for his conclusion that the noted limitations were self-imposed with any objective medical evidence (see Iannello v Vazquez, 78 AD3d 1121; Granovskiy v Zarbaliyev, 78 AD3d 656; cf. Perl v Meher, 74 AD3d 930; Bengaly v Singh, 68 AD3d 1030, 1031; Moriera v Durango, 65 AD3d 1024, 1024-1025; Torres v Garcia, 59 AD3d 705, 706; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).

Since the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiff's papers submitted in opposition were sufficient to raise a triable issue of fact (see Iannello v Vazquez, 78 AD3d at 1121; Ortiz v Orlov, 76 AD3d at 1001; Bengaly v Singh, 68 AD3d at 1031; Coscia v 938 Trading Corp., 283 AD2d 538).

Mazil v Quinones, 2011 NY Slip Op 04010 (App. Div, 2nd 2011)

In opposition, the plaintiffs submitted an affirmation from the injured plaintiff's treating physician, Dr. Benjamin Cortijo, inter alia, affirming the truth of his "initial examination report" also submitted in opposition. Dr. Cortijo conducted contemporaneous and recent examinations of the lumbar region of the injured plaintiff's spine. During each examination, he performed certain testing, including range-of-motion testing, which, each time, revealed certain significant range-of-motion limitations of the lumbar region of the injured plaintiff's spine. Based on his findings, he concluded that the injured plaintiff sustained a permanent injury to the lumbar region of her spine as a result of the accident.

The plaintiffs also provided an adequate explanation for the cessation of the injured plaintiff's treatment (see Pommells v Perez, 4 NY3d 566, 574). Dr. Cortijo affirmed that any further  treatment would have been merely palliative in nature (id. at 577).

The plaintiffs' submissions raised a triable issue of fact as to whether the injured plaintiff sustained a serious injury to the lumbar region of her spine under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Dixon v Fuller, 79 AD3d 1094, 1094-1095). Accordingly, the Supreme Court should have denied the defendants' separate motions for summary judgment dismissing the complaint.

Kukic v Grand, 2011 NY Slip Op 04168 (App. Div., 1st 2011)

In any event, the opinions in plaintiff's expert's affirmation identifying the manner in which the hospital staff deviated from good and accepted medical practice are speculative and wholly unsupported by the record (see DeFilippo v New York Downtown Hosp., 10 AD3d 521 [2004]).

Kopeloff v Arctic Cat, Inc., 2011 NY Slip Op 04007 (App. Div. 2nd 2011)

Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in rejecting as untimely the expert affidavit he submitted in opposition to the motion for summary judgment (see CPLR 3101[d]). The plaintiff did not provide any excuse for failing to identify the expert in response to the plaintiff's discovery demands. Indeed, the defendant was unaware of the expert until the defendant was served with the expert's affidavit in response to its summary judgment motion, even though the record discloses that the expert had been retained by the plaintiff approximately 18 months earlier. Under such circumstances, the Supreme Court properly declined to consider the affidavit (see Vailes v Nassau County Police Activity League, Inc., Roosevelt Unit, 72 AD3d 804, 805;  Yax v Development Team, Inc., 67 AD3d 1003, 1004; Gerardi v Verizon N.Y., Inc., 66 AD3d 960; cf. Saldivar v I.J. White Corp., 46 AD3d 660, 661; Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 711; cf. also Browne v Smith, 65 AD3d 996; Howard v Kennedy, 60 AD3d 906). In any event, even if the affidavit of the plaintiff's expert could have properly been considered, the result would not have been different, inasmuch as the Supreme Court correctly concluded that it was speculative, conclusory, and partially based on evidence which is not in the record (see Micciola v Sacchi, 36 AD3d 869, 871; Guarino v La Shellda Maintenance Corp., 252 AD2d 514, 515; see also Wartski v C.W. Post Campus of Long Is. Univ, 63 AD3d 916, 917).

Stewart v World El. Co, Inc, 2011 NY Slip Op 03895 (App. Div., 1st 2011)

Defendants failed, prima facie, to establish entitlement to summary judgment. "An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found" (Rogers v Dorchester Assoc., 32 NY2d 553, 559 [1973]). Defendants submitted virtually no evidence regarding the maintenance and inspection history of the elevator, either pre or post-accident. The only document produced in response to discovery requests was a "work log" which was referenced during the deposition of Kavanagh — who, notably, was not competent to testify concerning defendants' maintenance and inspection practices at the time of the incident — and which does not even appear in the record. A defendant is not entitled to summary judgment on notice grounds where there is a failure to present sufficient evidence regarding its maintenance procedures in respect of an allegedly malfunctioning elevator (see Green v City of New York, 76 AD3d 508 [2010]).

Even without defendants' failure, plaintiff's invocation of the doctrine of res ipsa loquitur raised a triable issue of material fact. Plaintiff testified that the elevator dropped suddenly, causing him to fall. When he regained consciousness, he notified the building superintendent of the emergency, and had to be lowered to the lobby level, where several persons had to pry the door open. Certainly, this is the type of event that does not ordinarily happen in the absence of negligence, and plaintiffs are entitled to invoke the doctrine as against defendants based on plaintiff's testimony concerning the elevator malfunction (see e.g. Kleinberg v City of New York, 61 AD3d 436, 438 [2009] [free-falling elevator is not an event that ordinarily happens in the absence of negligence]; Miller v Schindler Elev. Corp., 308 AD2d 312 [2003] [applying doctrine where plaintiff testified that elevator dropped suddenly, causing her to fall, notwithstanding defendant's evidence that the elevator was functioning immediately after the incident]).

The case of Williams v Swissotel N.Y. (152 AD2d 457 [1989]) is instructive. In Williams, the plaintiff was injured when the elevator on which he was riding dropped nine stories and abruptly stopped just below the lobby floor landing. Although one of defendant's principals maintained, as here, that the accident as described by the plaintiff was "physically impossible" due to the existence of certain safety features and the findings of a post-accident inspection revealing no "telltale markings" on the elevator cable, this Court found that the testimony of plaintiff was sufficient to support application of the res ipsa doctrine, stating "the testimony of [plaintiff] as to how the elevator fell is sufficient evidence, if found credible by the trier of fact, to support the application of the doctrine" (id. at 458).

Plaintiff's testimony, as corroborated by the contemporaneous incident report and witness statement, was sufficient to allow a fact finder to determine that the misleveling and/or free-fall of the elevator was the kind of accident that would not ordinarily happen in the absence of negligence. Defendants had exclusive control over the mechanisms and devices in the elevator, and there is no evidence that the incident was due to any action on the part of plaintiff. The motion court thus erred in refusing to allow the case to proceed to trial on res ipsa loquitur grounds and in dismissing the complaint as a matter of law.

It was also error to dismiss the affidavit of plaintiffs' expert Clarke as "speculative." Clarke's affidavit was not speculative, but rather, constituted legitimate opposition by an opposing expert, refuting and challenging the claim that the accident was "physically and mechanically impossible." Mr. Clarke, who had 38 years of experience in elevator construction, installation, maintenance and repair, directly challenged the statements of D'Ambra that the accident was not physically or mechanically possible, and provided a list of possibilities that could have caused the misleveling, including mechanical functions that D'Ambra never ruled out, mentioned, or addressed. Further, D'Ambra, in rendering his expert opinion, entirely ignored the undisputed fact that it took twenty minutes to bring the elevator down to the lobby after it became stuck and that plaintiff's supervisor and several other security guards had to forcefully pry the doors open in order to free plaintiff.

 

2221

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue
(e) Motion for Leave to Renew

Jordan v Yardeny, 2011 NY Slip Op 04423 (App. Div., 2nd 2011)

A motion for leave to renew must be based upon new facts not offered on a prior motion that would change the prior determination, and set forth a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e]; Swedish v Beizer, 51 AD3d 1008, 1010). The Supreme Court properly denied that branch of the defendant's motion which was, in effect, for leave to renew his prior motion to vacate the default judgment, as the new facts proffered would not have changed the prior determination (see CPLR 2103[b]; Cole v Young, 28 AD3d 702, 703; Jackson-Cutler v Long, 2 AD3d 590; Barbagallo v Nationwise Exterminating & Deodorizing, 260 AD2d 518, 519). Furthermore, the defendant failed to set forth a reasonable justification for the failure to present the new facts on the prior motion.

Zito v Jastremski, 2011 NY Slip Op 04240 (App. Div., 2nd 2011)

The Supreme Court providently exercised its discretion when it, in effect, denied that branch of the plaintiff's motion which was for leave to renew her opposition to the defendants' respective motions for summary judgment (see CPLR 2221[e]; O'Connell v Post, 27 AD3d 631; Renna v Gullo, 19 AD3d 472). The plaintiff sought leave to renew her opposition to the defendants' motions for summary judgment so that she could submit the dental records relied upon by her expert, which she failed to submit with her original opposition. The plaintiff failed to offer a reasonable justification as to why the proffered evidence was not submitted at the time of the prior motion. 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 (see Renna v Gullo, 19 AD3d 472; Hart v City of New York, 5 AD3d 438; Rubinstein v Goldman, 225 AD2d 328, 328-329). In addition, the records sought to be submitted would not have changed the prior determinations (see CPLR 2221[e][2]). Accordingly, that branch of the motion which was for leave to renew was properly denied.

Haque v Daddazio, 2011 NY Slip Op 04041 (App. Div., 2nd 2011)

The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue his opposition to that branch of the defendant's prior motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering, since the plaintiff failed to show that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and, moreover, he improperly presented arguments not previously advanced (see CPLR 2221[d][2]). A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (Mazinov v Rella, 79 AD3d 979, 980, quoting McGill v Goldman, 261 AD2d 593, 594).

Too late to attach transcript.

Suits v Wyckoff Hgts. Med. Ctr., 2011 NY Slip Op 03894 (App. DIv., 1st 2011)

Defendant's motion to renew was correctly denied since the deposition transcript proffered upon renewal existed at the time the original motion was made, and defendant failed to proffer any reasonable excuse for its failure to obtain a copy of the transcript from co-defendant's counsel before making that motion (see CPLR 2221[e]; Silverman v Leucadia Inc., 159 AD2d 254 [1990]).

3211(e): Standing waived, and other 3211 shenanigans

CPLR R. 3211(e) Number, time and waiver of objections; motion to plead over

1007

1008

JP Morgan Chase Bank, N.A. v Strands Hair Studio, LLC, 2011 NY Slip Op 04424 (App. DIv., 2nd 2011)

Contrary to the third-party defendant's contention, the Supreme Court properly denied that branch of her motion which was for summary judgment dismissing the main complaint on the ground that the plaintiff lacked standing. Although a third-party defendant has the right to assert against the plaintiff "any defenses which the third-party plaintiff has to the plaintiff's claim" (CPLR 1008), here, the third-party defendant failed to raise the issue of the plaintiff's standing in a pre-answer motion to dismiss or as an affirmative defense in her answer. Thus, she waived her right to raise the argument at all subsequent phases of the litigation pursuant to CPLR 3211(e) (see Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817, 817-818, cert deniedUS, 131 S Ct 648; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 625; HSBC Bank, USA v Dammond, 59 AD3d 679, 680; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241-243; Gilman v Abagnale, 235 AD2d 989, 990).

The Supreme Court also properly denied that branch of the third-party defendant's motion which was for summary judgment dismissing the main complaint on the ground that the plaintiff's service upon the defendant Strands Hair Studio, LLC (hereinafter the LLC) did not comport with Business Corporation Law § 306 (b)(1). Even assuming that the third-party defendant did not waive this objection by failing to raise it in her answer or in a pre-answer motion to dismiss (see CPLR 3211[e]), the court's personal jurisdiction over the LLC is not a "defense[] which the third-party plaintiff has to the plaintiff's claim," and, accordingly, it is not a defense the third-party defendant is entitled to raise here pursuant to CPLR 1008.

The Supreme Court also properly denied that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint. Contrary to the third-party defendant's contention, the third-party plaintiff's claims against her may be asserted pursuant to CPLR 1007. CPLR 1007 "should not be read as allowing recovery solely for claims sounding in strict indemnity" (George Cohen Agency v Donald S. Perlman Agency, 51 NY2d 358, 365). The statute "places no limit . . . upon the legal theories which may be asserted as a basis for the claim" (id. at 365), and "[t]he third-party complaint may be based on a theory of liability different from and independent of the cause of action pleaded against the primary defendant" (Zurich Ins. Co. v White, 129 AD2d 388, 390, citing Garrett v Holiday Inns, 58 NY2d 253, 262-263]).

Shaw v Club Mgrs. Assn. of Am., Inc., 2011 NY Slip Op 04034 (App. Div., 2nd 2011)

However, the Supreme Court erred in dismissing the fifth cause of action alleging defamation. The Supreme Court correctly determined that the alleged statements tend to injure the plaintiffs in their trade, business, or profession (see Wasserman v Haller, 216 AD2d 289, 289-290). Thus, the statements are slander per se and damages are presumed (see Liberman v Gelstein, 80 NY2d 429, 435). The Supreme Court then held that the alleged statements were protected by a qualified privilege. However, the shield provided by a qualified privilege may be dissolved if a plaintiff can demonstrate that a defendant spoke with spite or ill will (common-law malice) or with a high degree of awareness of the statements' probable falsity (constitutional malice) (see Liberman v Gelstein, 80 NY2d at 437-438; Kotowski v Hadley, 38 AD3d 499, 500). Here, the complaint alleged, inter alia, that certain of the individual defendants spoke with knowledge that such statements were false or spoke with reckless disregard for the statements' truth or falsity. "Since . . . the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)'" (Sokol v Leader, 74 AD3d 1180, 1182, quoting Kotowski v Hadley, 38 AD3d at 500-501; see Arts4All, Ltd. v Hancock, 5 AD3d 106, 109). Thus, dismissal of the fifth cause of action alleging defamation pursuant to CPLR 3211(a)(7) was not warranted.

Correa v Orient-Express Hotels, Inc., 2011 NY Slip Op 04375 (App. Div., 1st 2011)

Neither the affidavit nor the deposition testimony defendant offered constitutes the type of documentary evidence that may be considered on a motion pursuant to CPLR 3211(a)(1) (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]). The remainder of the evidence does not "conclusively establish[] a defense to the asserted claims as a matter of law" because it does not irrefutably establish that defendant neither owned nor controlled the premises (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Wright v C.H. Martin of White Plains Rd., Inc., 23 AD3d 295, 296 [2005]).

O'Callaghan v Brunelle, 2011 NY Slip Op 04095 (App. Div., 1st 2011)

The documentary evidence in support of the motion, including decisions from the NYSE and SEC, refuted plaintiff's allegations that defendants' failure to call the witness, who consented to the NYSE's Hearing Panel's finding that he engaged in conduct constituting improper trading arrangements and violated various rules, constituted legal malpractice and established a defense as a matter of law warranting dismissal of the complaint (see Minkow v Sanders, __ AD3d __ , 2011 NY Slip Op 02120 [2011]; see also CPLR 3211[a][1]). Contrary to plaintiff's contention, it is apparent from the motion court's decision that it properly treated the instant motion as one to dismiss and not one for summary judgment (compare Sokol v Leader, 74 AD3d 1180 [2010]).

 

3211(a)(8) Long Arm 302(a)(1)

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Andrews v Modell, 2011 NY Slip Op 03982 (App. Div., 2nd 2011)

Pursuant to CPLR 302(a)(1), "long-arm jurisdiction over a nondomiciliary exists where (i) a defendant transacted business within the state and (ii) the cause of action arose from that transaction of business" (Johnson v Ward, 4 NY3d 516, 519; see CPLR 302[a][1]). Here, the defendant did not conduct "sufficient purposeful activities in New York, which bore a substantial relationship to the subject matter of this action, so as to avail [himself] of the benefits and protections of New York's laws" (Transportation Ins. Co. v Simplicity, Inc., 61 AD3d 963, 964; see e.g. Spanierman Gallery, PSP v Love, 320 F Supp 2d 108, 111; PaineWebber Inc. v Westgate Group, Inc., 748 F Supp 115, 117, 119; Standard Wine & Liq. Co. v Bombay Spirits Co., 20 NY2d 13, 17; CK's Supermarket Ltd. v Peak Entertainment Holdings, Inc., 37 AD3d 348, 348; American Recreation Group v Woznicki, 87 AD2d 600, 601; J. E. T. Adv. Assoc. v Lawn King, 84 AD2d 744, 745; Pacific Concessions v Savard, 75 Misc 2d 219, 221; cf. Ulster Scientific v Guest Elchrom Scientific AG, 181 F Supp 2d 95, 102; Barclays Am./Bus. Credit v Boulware, 151 AD2d 330, 331). Accordingly, the Supreme Court lacked personal jurisdiction over the defendant and, thus, erred in denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction (see Sanchez v Major, 289 AD2d 320, 321; Foley v Roche, 68 AD2d 558, 565).

Magwitch, L.L.C. v Pusser's Inc., 2011 NY Slip Op 03973 (App. Div., 1st 2011)

On May 9, 2002, plaintiff entered into an assignment agreement with Barclays Bank PLC, whereby plaintiff purchased $3,300,000 of the debt owed by Pusser's Ltd. to Barclays in exchange for $1,500,000. Plaintiff was assigned the note and all security held by Barclays in Pusser's Ltd.'s assets. The agreement was governed by BVI law, and was signed by all parties in the BVI except plaintiff, which executed the agreement in New Jersey. The assignment of the security agreements, which provided for the collateral in the United States that secured the note, was executed by defendant Charles S. Tobias in the BVI and was governed by BVI law.

Following Pusser's Ltd.'s default on the note, plaintiff commenced an action in New Jersey federal court to recover on the note against the same defendants sued herein, namely, Pusser's Ltd., two entities affiliated with Pusser's Ltd. (one incorporated in Florida and the other in the BVI), and Tobias, a resident of the BVI who controls the corporate defendants. After the New Jersey action was dismissed for lack of personal jurisdiction, plaintiff commenced this action in Supreme Court, New York County. Defendants timely removed the action to federal court, based on the alleged existence of federal diversity jurisdiction; the removal was effected before the expiration of defendants' time to respond to the complaint by answer or motion. Plaintiff moved to remand the action to New York Supreme Court for lack of diversity, and defendants moved to dismiss for lack of personal jurisdiction. The federal court granted plaintiff's motion and directed that the entire matter, including defendants' pending motion to dismiss, be remanded to state court. Upon remand, Supreme Court granted the motion to dismiss. We affirm. 

Contrary to the argument of plaintiff and the dissent, defendants did not waive any defenses based on lack of personal jurisdiction by removing the action to federal court. We agree with the view of the Third Department, expressed in a decision issued after this appeal was argued, that Farmer v National Life Assn. of Hartford, Conn. (138 NY 265 [1893]), relied on by plaintiff and the dissent, is no longer binding because it was "based on the outdated distinction between special and general appearances . . . and also on the removal procedure applicable at that time, long since superseded by the CPLR, the Federal Rules of Civil Procedure and 28 USC § 1446" (Benifits by Design Corp. v Contractor Mgt. Servs., LLC, 75 AD3d 826, 828 [2010]; see also Siegel, NY Prac § 109 [4th ed] [under prior law "(a) special appearance was used by the defendant for the sole purpose of objecting to the court's jurisdiction of his person," but "(t)he CPLR abolished the special' appearance, and since the general' appearance was used only to differentiate it from the special one, both categories have disappeared under the CPLR"]). "Moreover, though not controlling, we note that removal does not waive the defense of lack of personal jurisdiction in federal court" (Benifits by Design, 75 AD3d at 828 [citations omitted]). While this Court rejected a similar argument against Farmer's continuing viability in Quinn v Booth Mem. Hosp. (239 AD2d 266 [1997]), we find the reasoning of the Third Department in the more recent Benifits by Design case persuasive and, given the desirability of uniform construction of the CPLR throughout the state, follow the latter decision.

The motion court properly dismissed the action for lack of personal jurisdiction. Although CPLR 302(a)(1) permits a court to exercise personal jurisdiction over any non-domiciliary who, in person or through an agent, "transacts any business within the state or contracts anywhere to supply goods or services in the state," defendants' actions here did not amount to purposeful activity by which they availed themselves of the privilege of conducting business in New York. The acts of sending payments to a New York bank account and correspondence to a New York address, and engaging in telephone discussions with plaintiff's principal, who also was defendants' legal advisor while he was in New York, were not a sufficient basis to satisfy the statutory requirements (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434 [2006], lv denied 9 NY3d 803 [2007]).

The court also properly found that it could not exercise personal jurisdiction over defendants pursuant to CPLR 302(a)(3). That section provides for jurisdiction over a defendant who (1) commits a tortious act outside New York (2) that causes injury within New York (3) where the defendant either (i) does or solicits business, or engages in any other course of conduct, or derives substantial revenue from activities in New York, or (ii) expects or should expect that its tortious act will have consequences in New York, and derives substantial revenue from interstate or international commerce (see CPLR 302[a][3]; see generally Cooperstein v Pan-Oceanic Mar., 124 AD2d 632, 633 [1986], lv denied 69 NY2d 611 [1987]). The determination of whether a tortious act committed outside New York causes injury inside the state is governed by the "situs-of-injury" test, requiring determination of the location of the original event that caused the injury (see Bank Brussels Lambert v Fiddler Gonzalez & Rodriguez, 171 F3d 779, 791 [2d Cir 1999]; see also Kramer v Hotel Los Monteros S.A., 57 AD2d 756 [1977], lv denied 43 NY2d 649 [1978]).

Here, the original event that caused the injury was not, as plaintiff maintains, the disbursement of funds from New York to purchase the note from Barclays, since there would not have been any injury if payment had been made when due. Rather, the injury was caused by misrepresentations about the transfer of assets and the transfer and diversion of funds, which occurred in the BVI and locations other than New York, and resulted in the unavailability of funds to pay plaintiff the amounts due on the note. The second part of the test also cannot be satisfied, since defendants do not either: regularly do or solicit business, or engage in any other persistent course of conduct, or derive substantial revenue for goods or services used or rendered in New York; or reasonably expect the alleged tortious act to have consequences in the state, and derive substantial revenue from interstate or international commerce (see CPLR 302[a][3]).

All concur except McGuire, J. who dissents

in a memorandum as follows:
McGUIRE, J. (dissenting)

This appeal is controlled by Farmer v National Life Assn. of Hartford Conn. (138 NY 265 [1893]) and our decision in Quinn v Booth Mem. Hosp. (239 AD2d 266 [1997]). In Farmer, the plaintiff commenced an action in state Supreme Court, the defendant removed it to federal court, and the federal court remanded it to Supreme Court. The defendant then moved to dismiss on the grounds that it had not been properly served and that the admission of service was defective. On the defendant's appeal to the Court of Appeals from the denial of its motion, the Court held that the defendant had waived this objection when it removed the action to federal court:

"It is unnecessary to consider what force, if any, the objections to the mode of service of process in this case and to the sufficiency of the admission of service might have had, if they had been seasonably made, for we think it must be held that the defendant necessarily submitted itself to the jurisdiction of the state court and waived any defect there may have been in the procedure to acquire jurisdiction of its person, by the proceeding which it initiated and consummated for the removal of the action into the United States Circuit Court. There could be no transfer of the cause from the state to the federal jurisdiction, unless there was an action pending. The federal statute required it, and the petition must so allege, and must also aver that the petitioner is a party to the action . . . [The rule recognizing the right of a defendant to challenge service after certain special appearances] has no application where the defendant becomes an actor in the suit and institutes a proceeding which has for its basis the existence of an action to which he must be a party. He thereby submits himself to the jurisdiction of the court" (138 NY at 269-70).

As is evident, the Court concluded both that the act of removing the case necessarily entailed a concession by the defendant that jurisdiction of its person had been properly acquired by the state court, and that the concession was conclusive. The Court reiterated this rationale in the course of discussing with approval a federal case in which, following the removal of an action commenced in state court, the court denied the defendant's motion to dismiss on the ground of defective service, reasoning that, "[b]y bringing it here, he voluntarily treats it as properly commenced and actually pending in the state court, and he cannot, after it is entered here, treat it otherwise" (id. at 271 [quoting Sayles v North Western Ins. Co., 2 Curtis C.C. 212 [1856]). The Court stated:

"The principle thus formulated, is, we think, sound, reasonable and just. It cannot be tolerated that a defendant shall question the jurisdiction of a state tribunal over his person, after he has effected a transfer of the cause to another court, by placing upon its records an affirmation under oath of the pendency of the action, and of his relation to it as a party, and obtained the approval of the court of the bond required as a condition of its removal. If the cause is subsequently remanded, he cannot be heard to say that his own proceedings have in effect been coram non judice" (id. at 271-272).

We followed Farmer in Quinn, holding that the defendants' "filing of a removal petition to Federal court effected a general appearance precluding their objections to defective service under CPLR 308(1) or (2) after the case was remanded to State court" (Quinn, 239 AD2d at 266). Moreover, we rejected the "suggest[ion] that Farmer is no longer valid" (id.).

Defendants argue that Farmer and Quinn are not controlling because "both cases involv[e] a challenge to [personal jurisdiction based on] service of process only," not a "challenge to personal jurisdiction under the long-arm statute or the due process clause." They cite no authority in support of this effort to create different classes of challenges to personal jurisdiction. Nor do they explain why an objection to personal jurisdiction based on improper (or even a complete lack of) service of process is of lesser moment than or otherwise stands on a different footing from objections to personal jurisdiction based on either the inapplicability of a long-arm statute or the want of sufficient contacts to satisfy due process [FN1]. Aside from these difficulties with defendants' argument, nothing in Farmer suggests that its waiver analysis turned on the specific reason personal jurisdiction allegedly was lacking. The insurmountable difficulty, however, flows from the rationale of Farmer —- removal to federal court entails a concession that personal jurisdiction properly was obtained by the state court —- and our obligation to accept its validity. That rationale applies with the same force to all objections to personal jurisdiction, be they based on the inapplicability of a long-arm statute, the insufficiency of contacts or improper service.

Defendants also argue that: (1) "a combined reading of CPLR 320 . . . and 3211 . . . establishes that removal does not constitute an appearance which . . . waives jurisdictional objections" and (2) "[c]onsistent with [federal precedents], the Federal Rules of Civil Procedure plainly allow objection to personal jurisdiction once a case is removed from state to federal court." The latter argument was raised unsuccessfully in Quinn (Reply Brief at 7, Quinn v Booth Mem. Hosp., 239 AD2d 266 [1997], supra). Moreover, both arguments apply with equal force to the waiver analysis in Farmer. Whatever their force, acceptance of either of these arguments would require us either to refuse to follow Farmer or to limit its holding to its particular facts without identifying a basis for doing so that does not equally undermine that holding.

At least implicitly, the majority rejects defendants' attempt to distinguish Farmer and Quinn. The majority, however, chooses to follow the recent decision of a panel of the Third Department in Benifits by Design Corp. v Contractor Mgt. Servs., LLC (75 AD3d 826 [2010]), because its reasoning is persuasive and a "uniform construction of the CPLR throughout the state" is desirable. The rationale of Farmer certainly is open to question, its inconsistency with federal law is clear, and it arguably unduly burdens the exercise of a federal right. But it has not been overruled by the Court of Appeals, and Quinn and Benifits by Design come to different conclusions on the question of whether Farmer was superseded by the CPLR. Moreover, defendants do not contend that Farmer is no longer good law but seek only to distinguish it, and thus the majority decides this appeal on a ground not raised by defendants (see Misicki v Caradonna, 12 NY3d 511, 519 [2009] ["to decide this appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play"]). For these reasons, I would follow Farmer despite my reservations about its rationale.

Accordingly, I would reverse and deny defendant's motion to dismiss for lack of personal jurisdiction.

66666

Evidence

Saccone v Gross, 2011 NY Slip Op 04444 (App. Div., 2nd 2011)

The plaintiffs' contention that the verdict was contrary to the weight of the evidence also is without merit. A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence (see Mancusi v Setzen, 73 AD3d 992, 993; Nicastro v Park, 113 AD2d 129, 134). " The jury's resolution of conflicting expert testimony is entitled to great weight, as it is the jury that had the opportunity to observe and hear the experts'" (Mancusi v Setzen, 73 AD3d at 993 quoting Speciale v Achari, 29 AD3d 674, 675). " Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert'" (Morales v Interfaith Med. Ctr., 71 AD3d 648, 650 quoting Ross v Mandeville, 45 AD3d 755, 757; see Segal v City of New York, 66 AD3d 865, 867). It is within the province of the jury to determine an expert's credibility (see Monroy v Glavas, 57 AD3d 631, 632; Cohen v Kasofsky, 55 AD3d 859, 860). Thus, since the jury was entitled to accept the opinion of the respondents' experts, there is no basis to disturb its determination.  

The plaintiff was properly precluded from offering the Physicians' Desk Reference (hereinafter the PDR) into evidence because the proffered evidence constituted inadmissible hearsay (see Spensieri v Lasky, 94 NY2d 231, 234; Hinlicky v Dreyfuss, 6 NY3d 636; Winant v Carras, 208 AD2d 618, 620).

Azevedo v Platform Taxi Serv., Inc., 2011 NY Slip Op 03985 (App. Div., 2nd 2011)

The defendants failed to meet their prima facie burden of showing that the injured 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). In support of their motion, the defendants submitted certain photographs depicting the injured plaintiff's alleged injuries. However, the photographs were not in admissible form (cf. Lewis v General Elec. Co., 145 AD2d 728, 729). Without the photographs, the defendants' other submissions in support of their motion for summary judgment were insufficient to establish, prima facie, the defendants' entitlement to judgment as a matter of law (see Rulison v Zanella, 119 AD2d 957, 957-958; Prieston v Massaro, 107 AD2d 742, 743; Savage v Delacruz, 100 AD2d 707, 707-708; see also Slater v Town of Rochester, 31 AD2d 590; cf. Sidibe v Cordero, 79 AD3d 536, 536; Baker v Thorpe, 43 AD3d 535, 537; Hutchinson v Beth Cab Corp., 207 AD2d 283, 283-284; Edwards v DeHaven, 155 AD2d 757, 758; Koppelmann v Lepler, 135 AD2d 507).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiffs' papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

Guccione v Guccione, 2011 NY Slip Op 03997 (App. Div., 2nd 2011)

Moreover, the nonparty purchaser of the subject property does have an interest in the property as contemplated by RPAPL 1501(4) and, in this regard, is a necessary party to this action, since his or her interest in the property would be affected by any judgment rendered herein (see RPAPL 1511[2]; CPLR 1001[a]; Censi v Cove Landings, Inc., 65 AD3d 1066, 1067-68; Migliore v Manzo, 28 AD3d 620, 621; Weinstein-Korn-Miller, NY Civ Prac ¶ 1001.03 [2d ed]; see also CPLR 1003). This action may be maintained if the purchaser is joined as a party plaintiff, the plaintiff demonstrates that the purchaser assigned his or her cause of action to the plaintiff (see Jean v Joseph, 41 AD3d 657, 658; Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc., 8 AD3d 419, 420), or the plaintiff is otherwise authorized to seek cancellation and discharge of the mortgage on the purchaser's behalf pursuant to CPLR 1004 (see Cardo v Board of Mgrs., Jefferson Vil. Condo 3, 67 AD3d 945, 946; Spectra Audio Research, Inc. v Chon, 62 AD3d 561, 564). The plaintiff, however, failed to make such a showing on her motion and, thus, the Supreme Court properly determined that the plaintiff was not entitled at this juncture to summary judgment under RPAPL 1501(4). 

To the extent the plaintiff sought declaratory relief based upon RPAPL 1921, the plaintiff demonstrated that she has an "interest in the mortgage or the debt or obligation secured thereby" such that she may maintain a cause of action (RPAPL 1921[2]). However, the plaintiff failed to establish, prima facie, that the mortgage was satisfied pursuant to RPAPL 1921, since her evidence consisted of statements concerning a transaction or communications with the deceased Mr. Guccione (see CPLR 4519), or was belatedly submitted in her reply brief and not addressed by her adversary (see Batista v Santiago, 25 AD3d 326; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 206; Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 678).

To the extent the plaintiff sought declaratory relief based upon RPAPL 1931, the plaintiff demonstrated that she is the mortgagor of the subject property, enabling her to proceed under that section (see RPAPL 1931[1]). However, the plaintiff failed to show that the mortgage was "ancient" (see RPAPL 1931[5]; Matter of Grasso [Trans-American Mgt. Corp.-Ciembroniewicz], 168 AD2d 713; Matter of Schwartz, 21 Misc 2d 845; Matter of Addesso, 69 NYS2d 702). Thus, the Supreme Court properly determined that the plaintiff was not entitled to summary judgment declaring the mortgage invalid and directing its cancellation under RPAPL 1921 or 1931.

Merriman v Intergrated Bldg. Controls, Inc., 2011 NY Slip Op 04013 (App. Div., 2nd 2011)

The Supreme Court, however, should have also denied the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). In response to the plaintiff's prima facie showing of his entitlement to judgment as a matter of law, the defendants submitted, inter alia, a report prepared by a neurologist who examined the plaintiff approximately six weeks after the accident. In recounting the circumstances of the accident, the report recited that, while descending the ladder on which he had been working, the plaintiff "missed a step." If credited, this statement, which is inconsistent with the account set forth in the plaintiff's affidavit in support of his motion for summary judgment, would support a finding that the plaintiff's alleged negligence was the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280).

The statement in the medical report was not germane to the diagnosis or treatment of the plaintiff and, therefore, at trial, it would not be admissible for its truth under the business records exception to the hearsay rule (see CPLR 4518; Williams v Alexander, 309 NY 283). Nonetheless, the requirement that evidentiary proof be submitted in admissible form is " more flexible'" when applied to a party opposing a motion for summary judgment than it is when applied to the moving party (Zuckerman v City of New York, 49 NY2d 557, 562, quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068). Accordingly, "proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment" (Zuilkowski v Sentry Ins., 114 AD2d 453, 454; see Phillips v Joseph Kantor & Co., 31 NY2d 307), particularly when the inadmissible evidence does not provide the sole basis for the denial of summary judgment (see Phillips v Kantor & Co., 31 NY2d at 310, 315). Such proof is permissible as long as the nonmoving party is able to " demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form'" (Zuckerman v City of New York, 49 NY2d at 562, quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d at 1068; see Moffett v Gerardi, 75 AD3d 496, 498).

Here, the defendants demonstrated an acceptable excuse for failing to elicit admissible evidence from the plaintiff's treating neurologist at this stage of the proceedings. Moreover, even without considering the inadmissible evidence in the neurologist's report, the plaintiff's equivocal responses at his deposition regarding the possibility that he "missed a step" while descending the ladder, as well as the defendants' potential ability to present the evidence contained in the medical report in admissible form at trial (see Williams v Alexander, 309 NY at 285 n), establish the arguable existence of a triable issue of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Accordingly, the defendants' submissions were sufficient to raise a triable issue of fact, requiring the denial of the plaintiff's motion.

Devito v Feliciano, 2011 NY Slip Op 04366 (App. DIv., 1st 2011)

The trial court did not err in excluding certain medical records of plaintiff, as they were not properly certified and never given to defendants for inspection prior to trial (see CPLR 3122-a). Nor did the trial court err in declining to provide a missing witness charge since plaintiff did not satisfy the elements that are a prerequisite for receiving the charge (see Getlin v St. Vincent's Hosp. & Med. Ctr. of N.Y., 117 AD2d 707, 708-709 [1986]; NY PJI 1:75, Comment, Caveat 2).

Jiminian v St. Barnabas Hosp., 2011 NY Slip Op 04371 (App. DIv., 1st 2011)

The motion court correctly determined that following defendants' showing of entitlement to judgment as a matter of law, plaintiff demonstrated the existence of triable issues of fact precluding dismissal of the action as against defendants through plaintiff's own testimony and the report submitted by his expert. Plaintiff's testimony concerning his wife's complaints of dizziness and shortness of breath are res gestae, admissible as simple expressions of suffering by the injured party, who is no longer available by reason of her death, which occurred less than 12 hours following her complaints (see 58 NY Jur 2d, Evidence and Witnesses § 338; Tromblee v North Am. Acc. Ins. Co., 173 App Div 174, 176 [1916], affd 226 NY 615 [1919]). Accordingly, triable issues exist as to whether defendant hospital departed from good and accepted medical practice in failing to properly investigate and address the decedent's complaints.

The report of plaintiff's expert also conflicts with the conclusions of Leong's expert on the issue of whether the decedent was at an increased risk for a pulmonary embolism secondary to deep vein thrombosis, whether Leong failed to properly recognize and treat that risk, and whether said failure was the proximate cause of death (see e.g. Bradley v Soundview Healthcenter, 4 AD3d 194 [2004]).

IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 2011 NY Slip Op 04306 (App. DIv., 1st 2011)

IRB met its prima facie burden of establishing entitlement to summary judgment with evidence that defendant Portobello International Limited issued the Global Note, defendant guarantors guaranteed it, IRB purchased it and Portobello defaulted (see IRB-Brazil Resseguros, S.A. v Inepar Investments, S.A., __ AD3d __, 2011 NY Slip Op 03275; IRB-Brasil Resseguros S.A. v Eldorado Trading Corp. Ltd., 68 AD3d 576, 577 [2009]; Eastbank v Phoenix Garden Rest., 216 AD2d 152 [1995], lv denied 86 NY2d 711 [1995]).

In opposition, defendants fail to raise issues of fact regarding the ownership or location of the Global Note. The record shows that defendants accepted the initial loan from IRB, paid interest on the Global Note for a number of years and, at the time of their default, negotiated new terms with IRB, implicitly admitting that IRB was the owner of the note. Moreover, defendants sued IRB — in its capacity as owner of the Global Note — in a separate action. Defendants cannot now be heard to object to the ownership which they embraced when it suited them (see RPI Professional Alternatives, Inc. v Citigroup Global Mkts. Inc., 61 AD3d 618, 619 [2009]).

Equally unavailing are defendants' arguments concerning plaintiff's inability to produce the physical note where, as here, defendants have waived presentment numerous times. These waivers excuse any requirement that the instrument sued upon be presented in connection with subsequent litigation against Portobello as issuers, or against the guarantors (see Banco Nacional de Mexico v Ecoban Fin., 276 AD2d 284 [2000]).

Defendants have failed to show they discharged their debt. Defendants' primary argument is that the JP Morgan document establishes payment. This document, however, which defendants never authenticated through anyone at JP Morgan, and which is offered for the truth of the matter asserted, is impermissible hearsay and does not fall within an exception to the hearsay rule (see e.g. Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479, 480 [2007] [document not "so patently trustworthy as to be self-authenticating"]). Accordingly, it is insufficient to defeat the summary judgment motion (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]; Van Dina v City of New York, 292 AD2d 267, 268 [2002]).

Defendants seek to avoid summary judgment by claiming a need for further discovery. Defendants did not demonstrate, however, that there was a likelihood that there is relevant evidence in IRB's exclusive knowledge, that further discovery might reveal the existence of such evidence, or that they made a reasonable attempt, prior to the motion, to pursue other means of discovering the information now claimed to be necessary (see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 162-163 [2008], lv denied 11 NY3d 716 [2009]; Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557 [2007]).

The court properly denied defendants' motion for leave to amend their answers because the proposed counterclaims sounding in fraud plainly lacked merit (see R & R Capital LLC v Merritt, 78 AD3d 533 [2010]).

The court properly applied the statutory interest rate to plaintiff's award of post-judgment interest because, although the terms of the Global Note clearly contemplate payment of interest through satisfaction of the principal, it does not "clearly and unequivocally" specify a post-judgment rate. Accordingly, the motion court correctly "merged" the contract into the judgment and applied the statutory interest rate (Marine Mgt. v Seco Mgt., 176 AD2d 252, 253 [1991], affd 80 NY2d 886 [1992]).

 

Attorney Fees

Insurance Co. of Greater N.Y. v Clermont Armory, LLC, 2011 NY Slip Op 04421 (App. Div., 2nd 2011)

However, the Supreme Court erred in granting that branch of Clermont's motion which was for an award of an attorney's fee. A prevailing party may not recover an attorney's fee from the losing party except where authorized by statute, agreement, or court rule (see U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597-598, citing Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22). Although an insured who is "cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations," and who prevails on the merits, may recover an attorney's fee incurred in defending against the insurer's action (U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d at 598, quoting Mighty Midgets v Centennial Ins. Co., 47 NY2d at 21), recovery is only possible where the insurer has a duty to defend the insured. Here, the policy covered only property damage and was not a liability policy, but rather a casualty policy. Consequently, ICGNY had no duty to defend Clermont, and its commencement of this action did not put Clermont in a "defensive posture" within the meaning of Mighty Midgets v Centennial Ins. Co. (47 NY2d at 21) (cf. Matter of Aetna Cas. & Sur. Co. v Dawson, 84 AD2d 708, 709, affd for reasons stated below 56 NY2d 1022).

Matakov v Kel-Tech Constr. Inc., 2011 NY Slip Op 04511 (App. Div., 1st 2011)

The subject motion seeks attorneys' fees incurred in connection with the settlement of two related class actions. Plaintiffs brought the actions alleging, inter alia, breach of contract and violation of the New York Labor Law, to obtain prevailing wages for work they had performed at New York City public schools pursuant to public contracts. Following more than five years of litigation, the parties entered into a Stipulation of Class Action Settlement (Stipulation), pursuant to which defendant-appellant was to pay the difference between the wages paid to class members and prevailing wages, provided that the total settlement amount not exceed $600,000. Also pursuant to the Stipulation, defendant agreed to pay class counsel's attorneys' fees, provided such fees were reasonable and did not exceed $200,000. Pursuant to procedures outlined in the Stipulation, plaintiffs' total recovery was determined to be $116,648.66.

The court properly applied the lodestar method to calculate plaintiffs' class counsel's fee rather than the percentage method (see Nager v Teachers' Retirement Sys. of City of N.Y., 57 AD3d 389 [2008], lv denied 13 NY3d 702 [2009]; Flemming v Barnwell Nursing Home & Health Facilities, Inc., 56 AD3d 162, 165-166 [2008], affd 15 NY3d 375 [2010]). However, the record demonstrates that class counsel failed to establish through competent evidence that its fees were consistent with "customary fee[s] charged for similar services by lawyers in the community with like experience and of comparable reputation," or were reasonable (Friedman v Miale, 69 AD3d 789, 791-792 [2010], lv denied 16 NY3d 706 [2011] [internal quotation marks and citation omitted]). Class counsel also failed to submit evidence reflecting the training, background, experience and skill of some individual attorneys who performed work in connection with the class actions (see Matter of Rahmey v Blum, 95 AD2d 294, 302 [1983]). The record reflects that  a great deal of expense on all sides could have been avoided had plaintiffs' claims been appropriately investigated before a lawsuit was filed; concomitantly the number of hours expended was apparently excessive. In our view, the court should have undertaken an analysis as to whether all 1,256 hours expended by class counsel's attorneys, and the 433 hours worked by its paralegals, were useful and reasonable (see Lunday v City of Albany, 42 F3d 131, 134 [2d Cir 1994]).

Notwithstanding the motion court's observations that the litigation was "contentious," "heated" and "hard-fought," in light of the fact that the fee far exceeded plaintiffs' recovery, we remand the matter to Supreme Court for an evidentiary hearing to determine an appropriate amount of reasonable attorneys' fees
to be awarded (see Friar v Vanguard Holding Corp., 125 AD2d 444, 447 [1986]).

All concur except Mazzarelli, J.P. and Manzanet-Daniels, J. who dissent in part in a memorandum by Mazzarelli, J.P. as follows:

MAZZARELLI, J.P. (dissenting in part)

I agree with the majority that the motion court properly applied the lodestar method in ascertaining the appropriate fee due to class counsel. However, the record reflects that the court, which was intimately familiar with the contentious nature of a litigation that was aggressively litigated by both sides, gave appropriate consideration to each of the lodestar factors, including the quality of class counsel's representation. Accordingly, a hearing on the application would be a poor allocation of judicial resources.

It is well established that a trial court's fee award in a class action is entitled to broad deference, "and will not be overturned absent an abuse of discretion, such as a mistake of law or a clearly erroneous factual finding" (Goldberger v Integrated Resources, Inc., 209 F3d 43, 47 [2d Cir 2000])[FN1]. This is because the trial court "is intimately familiar with the nuances of [a] case, [and] is in a far better position to [rule on a fee application] than is an appellate court, which must work
from a cold record" (In re Bolar Pharm. Co., Inc., Sec. Litig., 966 F2d 731, 732 [2d Cir 1992]).

Disregarding these principles, the majority would remand this matter, and direct the court to engage in "an analysis as to whether all 1,256 hours expended by class counsel's attorneys, and the 433 hours worked by its paralegals, were useful and reasonable." This, the majority maintains, is necessary because the court did not account for expenses which "could have been avoided had plaintiffs' claims been appropriately investigated before a lawsuit was filed." However, the majority ignores several facts. First, the court has already analyzed the six lodestar factors, one of which is the quality of the representation provided. In addition, as the court expressly noted, the fee awarded to class counsel is 49% less than the amount actually billed. This reduction, it is reasonable to assume, more than embraces any work related to plaintiff's unsuccessful attempt to have subclasses certified in connection with certain projects.

Further, it is unfair for the majority to characterize the amount of fees billed as primarily owing to strategic choices made by class counsel. After all, defendants also litigated the matter aggressively, making strategic choices which drove up class counsel's fees. In retrospect, some of these choices could be seen as ill-advised, such as prosecuting two unsuccessful appeals to this Court.

The case which the majority relies on in suggesting that a more detailed analysis of the billings is necessary, Lunday v City of Albany (42 F3d 131, 134 [2d Cir. 1994]), is readily distinguishable. In that case, a district judge presided over the merits of the litigation, and the fee application was decided by a magistrate judge. Here, of course the same court that oversaw the a matter, which it described as "hard-fought," considered the fee request. Thus, it was in a far better position to assess an appropriate fee.

Furthermore, Lunday was decided under a unique set of facts. As in this case, the defendants raised questions about the reasonableness of amount of time expended by counsel, and the Second Circuit properly stated that there was no requirement "that the court set forth item-by-item findings concerning what may be countless objections to individual billing items" (id.). Indeed, the court observed that, while the bills submitted by the plaintiff's counsel were "in certain respects eyebrow-raising . . . we cannot conclude that the review conducted by the Magistrate Judge was erroneous, or lacking in care" (id.). However, the sole reason why the court remanded the fee application in Lunday was because of the District Court's comment that to engage in a detailed review of the submitted billing would be "to demean counsel's stature as officers of the court (id.)." The Second Circuit, while noting that none of the objections raised by the defendants appeared to be meritorious, remanded to ensure that the magistrate judge's comment did not reflect a level of undue deference afforded the fee request.

Here, there is no indication that the motion court may have improperly abdicated its obligation to review the fee application. Accordingly, it is appropriate to defer to the court's determination that the fees awarded were commensurate with the legal work, in light of all of the circumstances.

I further disagree with the majority that class counsel failed to establish that its fees were consistent with "customary fees charged for similar services by lawyers in the community with like experience and of comparable reputation." The supervising partner swore in his affirmation in support of the application that his hourly rate of $375, reduced to $350 for this matter, is consistent "with the hourly rates charged by attorneys of reasonably comparable skill, experience and reputation in New York." In Friedman v Miale (69 AD3d 789 [2010], lv denied 16 NY3d 706 [2011]), the case cited by the majority, the record was "devoid" of such proof (69 AD3d at 791). It is noted that, in opposing the fee application, defendant did not question the reasonableness of class counsel's hourly rates, raising that objection for the first time on this appeal. Nor, did defendant challenge below the billings by the firm's associates on the basis that they failed to establish their "training, background, experience and skill." In any event, the supervising partner's description of the associates' years of experience as attorneys and the fact that they had assisted him in "numerous" wage-and-hour law cases were certainly sufficient bases for the court to weigh the reasonableness of the relevant portions of the fee request. 

Based on the foregoing, it is clear that the motion court acted within its broad discretion. Accordingly, I would leave undisturbed the court's award of fees to plaintiffs.