Appellate Division

CPLR R. 3212 and such

CPLR R. 3212 Motion for summary judgment

Pleadings required

Fiber Consultants, Inc. v Fiber Optek Interconnect Corp., 2011 NY Slip Op 04412 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of the cross motion of the defendant Michael S. Pascazi which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him. "A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90-day period" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503). Here, Pascazi's 90-day demand was served prior to joinder of issue on the third amended complaint and, thus, was premature.

However, the Supreme Court erred in granting that branch of the plaintiff's motion which was for summary judgment on its eighth cause of action for an award of an attorney's fee insofar as asserted against Pascazi to the extent of finding that the plaintiff was entitled to attorney's fees pursuant to Debtor and Creditor Law § 276-a and directing a hearing to determine the amount of such fees due the plaintiff. Denial of summary judgment was required since the plaintiff failed to include a copy of the pleadings in support of its motion, as required by CPLR 3212(b) (see Matter of Fraternal Order of Eagles v Board of Assessors, 73 AD3d 770, 771; Zellner v Tarnell, 54 AD3d 329, 329-330; Sendor v Chervin, 51 AD3d 1003; Thompson v Foreign Cars Ctr., Inc., 40 AD3d 965; Matsyuk v Konkalipos, 35 AD3d 675; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663). Under the circumstances of this case, the Supreme Court should have denied the motion without prejudice to renewal upon proper papers (see Wider v Heller, 24 AD3d 433, 434; Greene v Wood, 6 AD3d 976, 977; Welton v Drobnicki, 298 AD2d 757, 757).

Capasso v Capasso, 2011 NY Slip Op 04187 (App. Div., 2nd 2011)

The plaintiff's contention that summary judgment was granted prematurely under the facts of this case is without merit. The belief that additional discovery might reveal something helpful to her case does not provide a basis pursuant to CPLR 3212(f) for postponing a determination of summary judgment in this case (see Morissaint v Raemar Corp., 271 AD2d 586).

Horn v Hires, 2011 NY Slip Op 04205 (App. Div., 2nd 2011)

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff raised new theories of liability for the first time in opposition to the motion which should not have been considered in light of the plaintiff's protracted delay in presenting those new theories (see Gallello v MARJ Distribs., Inc., 50 AD3d 734, 736; Medina v Sears, Roebuck & Co., 41 AD3d 798, 799-800; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524). Accordingly, the Supreme Court should have granted the defendant's motion, in effect, for summary judgment dismissing the complaint.

James v Aircraft Serv. Intl. Group, 2011 NY Slip Op 04206 (App. DIv., 2nd 2011)

"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (Matter of Fasciglione, 73 AD3d 769, 770; see CPLR 3212[f]; Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793; see Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). Here, the appellant moved for summary judgment dismissing the complaint insofar as asserted against it prior to the exchange of any discovery. Under the circumstances of this case, the Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it without prejudice to renewal after the completion of discovery.

Personak Knowledge

Lopez v Stop & Shop Supermarket Co., LLC, 2011 NY Slip Op 04009 (App. DIv., 2nd 2011)

In this case, since the appellants failed to offer proof by a person with personal knowledge, they failed to establish prima facie that they were not aware of the hazardous condition complained of by the plaintiff, which was the wet packaging of the beer the plaintiff was carrying at the time of the alleged accident. Accordingly, the Supreme Court correctly denied their summary judgment motion without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

Teitelbaum v Crown Hgts. Assn. for the Betterment, 2011 NY Slip Op 04038 (App. Div., 2nd 2011)

The Supreme Court, however, should have denied, as untimely, that branch of the City's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it. The City failed to demonstrate good cause for its delay in making the cross motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652; Bickelman v Herrill Bowling Corp., 49 AD3d 578, 580). Contrary to the City's contention, the issues raised on its cross motion were not "nearly identical" to the issues raised on Crown Heights's motion (Ianello v O'Connor, 58 AD3d 684, 686; see Joyner-Pack v Sykes, 54 AD3d 727, 728; Grande v Peteroy, 39 AD3d 590, 592; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 496-497).

Jones v Pinnacle Dunbar Manor, LLC, 2011 NY Slip Op 04091 (App. Div., 1st 2011)

Defendant's motion for summary judgment was properly denied as untimely (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]). Defendant's excuse that it failed to timely file its motion due to the misplacement of a necessary affidavit does not demonstrate "good cause" within the meaning of CPLR 3212(a) (see Perini Corp. v City of New York [Department of Envtl. Protection], 16 AD3d 37, 40 [2005]). Even if we were to excuse defendant's tardiness, we would still be constrained to deny the motion, due to the presence of numerous issues of fact precluding summary judgment.

Prove a negative?

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

Wyckoff Heights, however, failed to make a prima facie showing that neither it nor its employees committed independent acts of negligence (see Fiorentino v Wenger, 19 NY2d 407, 414 [1967] ["[w]here a hospital's alleged misconduct involves an omission to act, the hospital will not be held responsible unless it had reason to know that it should have acted within the duty it concededly had"]). Indeed, in its motion for partial summary judgment, Wyckoff Heights merely attached the pleadings and bill of particulars. Significantly, Abakporo's deposition testimony was not included ^[FN1]. Thus, Wyckoff Heights failed to establish its prima facie entitlement to summary judgment, and accordingly the burden never shifted to plaintiff to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

That plaintiffs' bill of particulars stated that plaintiffs believed that the injuries were caused by Dr. Abakporo's negligence is of no moment inasmuch as the underlying pleadings must be liberally construed (CPLR 3026). In any event, plaintiffs' action is not limited to the wording in the bill of particulars cited by the majority, especially when plaintiffs also stated that their claim was against Wyckoff Heights' employees and agents (see Toth v Bloshinsky, 39 AD3d at 849 [holding that all that was required of the plaintiff in serving a bill of particulars was to "provide a general statement of the acts or omissions constituting the alleged negligence"]). In short, the specific wording of the bill of particulars cited by the majority did not relieve Wyckoff Heights of its obligation to establish its prima facie entitlement to summary judgment with proof in admissible form.

CPLR R. 2214 OSC

CPLR R. 2214 Motion papers; service; time

Carter v Johnson, 2011 NY Slip Op 04403 (App. DIv., 2nd 2011)

During the course of this action, inter alia, for the partition of real property, the plaintiffs entered into a stipulation of settlement with the defendant Phyllis B. Johnson wherein Johnson agreed, among other things, to purchase the plaintiffs' share in the subject property. However, Johnson failed to tender performance, and the plaintiffs thereafter entered a judgment against her in the principal sum of $200,000. Johnson subsequently moved by order to show cause to vacate this judgment. In the resulting order, the Supreme Court denied vacatur, but sua sponte granted relief which was not requested by the movant, namely, it "stayed and enjoined [the plaintiffs] from executing the judgment by sale of [the subject property] for so long as defendant Johnson resides in the premises and until further order of this court."

Pursuant to CPLR 2214(a), an order to show cause must state "the relief demanded and the grounds therefor." "The court may grant relief, pursuant to a general prayer contained in the . . . order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing on the papers on both sides" (HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774, 774).

In the case at bar, Johnson never requested the stay relief granted by the Supreme Court. Moreover, the order to show cause contained no general prayer for relief, and even requested that the Supreme Court "appoint[ ] a Judicial Hearing Officer . . . with regard to partitioning the property." Given such a request, the Supreme Court's decision to, in effect, grant to Johnson what was essentially a life estate in the property was not only unwarranted by the facts, but was inconsistent with the relief sought in the order to show cause (see e.g. Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702, 705; Singh v Hobart Corp., 302 AD2d 444, 445; cf. Shaw v RPA Assoc., LLC, 75 AD3d 634, 635). It is also clear that this unrequested relief operated to the prejudice of the plaintiffs (see HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774). Accordingly, it was error to grant such relief.

In light of our conclusion herein, we need not reach the plaintiffs' remaining contentions, and their appeal from the denial of that branch of their motion which was denominated as leave to renew has been rendered academic.

Exclusions and terms

Bentoria Holdings, Inc. v Travelers Indem. Co., 2011 NY Slip Op 04400 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of Travelers' motion which was for summary judgment dismissing the complaint insofar as asserted against it. "Generally, where an insurer wishes to exclude certain coverage from its policy obligations, it must do so in clear and unmistakable language" (Lee v State Farm Fire & Cas. Co., 32 AD3d 902, 903 [internal quotation marks omitted]; see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311). "Such exclusions or exceptions from policy coverage must be specific and clear in order to be enforceable, and they are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction" (Lee v State Farm Fire & Cas. Co., 32 AD3d at 903 [internal quotation marks omitted]). "Thus the insurance company bears the burden of establishing that the exclusions apply in a particular case and that they are subject to no other reasonable interpretation" (id. at 903-904 [internal quotation marks omitted]; see Seaboard Sur. Co. v Gillette Co., 64 NY2d at 311). "The burden is a heavy one, and if the language is doubtful or uncertain in its meaning, any ambiguity will be construed in favor of the insured and against the insurer" (Lee v State Farm Fire & Cas. Co., 32 AD3d at 904; see Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 13 AD3d 599, 600).

Here, Travelers failed to establish its prima facie entitlement to judgment as a matter of law by meeting the heavy burden of demonstrating that the earth movement exclusion clearly and unambiguously applied to the loss at issue in this case (see Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302, 306-307; Lee v State Farm Fire & Cas. Co., 32 AD3d at 904). Excavation was not expressly set forth in the exclusion, while other, less common causes of earth movement were (see Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d at 308). Travelers failed to establish, prima facie, that the facts of this case, which allegedly involves the excavation of earth from a lot adjacent to the plaintiff's building, fall squarely within the language of the exclusion, which expressly defines earth movement as "[e]arth sinking, . . . rising or shifting" (see Lee v State Farm Fire & Cas. Co., 32 AD3d at 904). Thus, notwithstanding the fact that the exclusion here refers to earth movement caused by "man made" or "artificial" causes, we conclude that Travelers failed to demonstrate, prima facie, that the express terms of the exclusion clearly and unambiguously establish that the loss at issue here was not covered by the policy. Accordingly, the Supreme Court properly denied that branch of Travelers' motion which was for summary judgment dismissing the complaint insofar as asserted against it.

The Supreme Court providently exercised its discretion in denying the alternate branch of Travelers' motion which was to sever the action insofar as asserted against it. "The determination to grant or deny a request for a severance pursuant to CPLR 603 is a matter of judicial discretion which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking the severance" (Naylor v Knoll Farms of Suffolk County, Inc., 31 AD3d 726, 727). Here, there are common factual issues involved in the claims against Travelers and the other defendants, and the interests of judicial economy and consistency will be served by having a single trial (see Ingoglia v Leshaj, 1 AD3d 482, 485). Additionally, Travelers failed to demonstrate that a single trial would result in prejudice to a substantial right (see Quiroz v Beitia, 68 AD3d 957, 960-961).

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

Generally, where an insurer wishes to exclude certain coverage from its policy obligations,

"it must do so in clear and unmistakable language. Any such exclusions or exceptions from policy coverage must be specific and clear in order to be enforced. They are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction. Indeed, before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation" (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [internal quotation marks and citations omitted]; see Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302, 307).

The insurer's burden is heavy, and doubtful or uncertain language leading to ambiguity will be interpreted against the insurer (see Lee v State Farm Fire & Cas. Co., 32 AD3d 902, 904; Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 13 AD3d 599, 600).

Altronix Corp. v Central Machining Specialties, Inc., 2011 NY Slip Op 04181 (App. Div., 2nd 2011)

"[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569; see Bridge Pub. Relations & Consulting, Inc. v Hylan Elec. Contr., Inc., 65 AD3d 603, 603-604). "A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion" (Greenfield v Philles Records, 98 NY2d at 569 [internal quotation marks omitted]; see Bridge Pub. Relations & Consulting, Inc. v Hylan Elec. Contr., Inc., 65 AD3d at 603-604). It is for the court to determine, as matter of law, whether reasonable people may reasonably differ about the meaning of the contract's language (see Breed v Insurance Co. of N. Am., 46 NY2d 351, 356; Bridge Pub. Relations & Consulting, Inc. v Hylan Elec. Contr., Inc., 65 AD3d at 604).

Etzion v Etzion, 2011 NY Slip Op 04198 (App. Div., 2nd 2011)

On this appeal, the plaintiff contends that the Supreme Court erred in denying her motion pursuant to CPLR 3211(a)(1) and (7) to dismiss a counterclaim asserted by the defendant former husband, Rafael Etzion (hereinafter the defendant), for an award of an attorney's fee pursuant to the terms of a stipulation of settlement entered into by the defendant and the plaintiff on June 8, 2005, or, in the alternative, for summary judgment dismissing the counterclaim.

Parties are free to enter into agreements that "not only bind[ ] them, but which the courts are bound to enforce" (Greve v Aetna Live-Stock Ins. Co., 30 NYS 668, 670). Marital contracts are "subject to principles of contract [construction and] interpretation" (Rainbow v Swisher, 72 NY2d 106, 109; see Matter of Meccico v Meccico, 76 NY2d 822, 823-824; Girardin v Girardin, 281 AD2d 457, 457). Moreover, "[w]here a stipulation of settlement provides the basis for an award of an attorney's fee, the terms of the agreement control" (Arato v Arato, 15 AD3d 511, 512; see Sweeney v Sweeney, 71 AD3d 989, 992).

"The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent" (Greenfield v Philles Records, 98 NY2d 562, 569; see Hooper Assoc. v AGS Computers, 74 NY2d 487, 491). "Where . . . the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" (Rainbow v Swisher, 72 NY2d at 109; see Matter of Meccico v Meccico, 76 NY2d 822; Clark v Clark, 33 AD3d 836, 837; see also Kass v Kass, 91 NY2d 554, 556). "Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d at 569; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162).

" [C]ourts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing'" (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475, quoting Reiss v Financial Performance Corp., 97 NY2d 195, 199; see Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d 398, 404; McWade v McWade, 253 AD2d 798, 799). Thus, a court "will not imply a term where the circumstances surrounding the formation of the contract indicate that the parties, when the contract was made, must have foreseen the contingency at issue and the agreement can be enforced according to its terms" (Reiss v Financial Performance Corp., 97 NY2d at 199; see Henrich v Phazar Antenna Corp., 33 AD3d 864, 867). "The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court" (Franklin Apt. Assoc., Inc. v Westbrook Tenants Corp., 43 AD3d 860, 861; see Katina, Inc. v Famiglietti, 306 AD2d 440, 441).

Here, the defendant's counterclaim for an award of an attorney's fee is based on an overbroad reading of an attorney's-fee provision in the parties' stipulation of settlement executed on June 8, 2005 (hereinafter the agreement), which was subsequently incorporated, but not merged, into their judgment of divorce. The parties' separation agreement, at Article XXV, paragraph 3, states, in relevant part:

"In the event either party is forced to seek aid of counsel in enforcing any rights pursuant to this Stipulation, and in the event that party is successful in enforcing such right(s), the other shall reimburse him or her for any reasonable attorneys' fees necessarily incurred in enforcing such rights. The provisions of this paragraph shall be in addition, and without prejudice or limitation, to any other rights or remedies to which the aggrieved party may be entitled. The parties agree that the purpose of this paragraph is to prevent unnecessary litigation between them and to encourage each to fulfill his or her responsibilities under the terms of this Stipulation as fully as possible" (emphasis added).

The defendant, in his counterclaim, asserts that he was entitled to an award of an attorney's fee pursuant to the fees provision because he has been forced, in effect, to defend his rights under the separation agreement. However, the agreement clearly and unambiguously provides that only the party seeking to enforce any rights under the agreement shall be entitled to an attorney's fee, if successful. The defendant is not enforcing any rights under the agreement by simply defending against the plaintiff's motion (see Ferrara v Ferrara, 42 AD3d 426, 427). Had the parties intended the fees provision to be construed as the defendant contends, they were free to expressly so provide (id. at 427).

" [W]here . . . documentary evidence utterly refutes [the proponent's] factual allegations, conclusively establishing a defense as a matter of law,'" a motion to dismiss may be properly granted (Stein v Garfield Regency Condominium, 65 AD3d 1126, 1128, quoting Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 87; Wild Oaks, LLC v Joseph A. Beehan Jr., Gen. Contr., Inc., 77 AD3d 924, 926; Roth v R & P Rest. Corp., 68 AD3d 961, 963; Mazur Bros. Realty, LLC v State of New York, 59 AD3d 401, 402; Troccoli v Zarabi, 57 AD3d 971, 972). Based upon the documentary evidence, consisting of the agreement, the plaintiff conclusively established, as a matter of law, that the defendant is not entitled to an award of an attorney's fee, regardless of the outcome of the current dispute.

31 Victory Corp. v Victory Props., LLC, 2011 NY Slip Op 04039 (App. Div. 2nd 2011)

"The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent" (Greenfield v Philles Records, 98 NY2d 562, 569). "[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (id.). Here, however, the terms of the guaranty, including the effect and date of commencement of the 18-month limitation contained therein, cannot be enforced, as they did not have "a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion" (Breed v Insurance Co. of N. Am., 46 NY2d 351, 355). Moreover, the intentions of the parties cannot be ascertained from any of the extrinsic evidence presented (see Weiss v Weinreb & Weinreb, 17 AD3d 353, 354). As such, the Supreme Court properly construed the ambiguous terms of the guarantee against the party that drafted it, which in this instance was Victory Properties (see Jacobson v Sassower, 66 NY2d 991; 151 W. Assoc. v Printsiples Fabric Corp., 61 NY2d 732, 734).

Dean v Tower Ins. Co. of N.Y., 2011 NY Slip Op 03899 (App. Div., 1st 2011)

Defendant failed to satisfy its prima facie burden on its motion for summary judgment. Because the "residence premises" insurance policy fails to define what qualifies as "resides" for the purposes of attaching coverage, the policy is ambiguous in the circumstances of this case, where the plaintiffs-insureds purchased the policy in advance of closing but were then unable to fulfill their intention of establishing residency at the subject premises due to their discovery and remediation of termite damage that required major renovations. "[B]efore an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation" (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]). Accordingly, the ambiguity in the policy must be construed against defendant under the facts of this case, and precludes the grant of summary judgment in its favor (see Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398 [1983]). Marshall v Tower Ins. Co. of N.Y. (44 AD3d 1014 [2007] is inapposite because it did not address whether the term "residence premises" is ambiguous in light of the policy's failure to define "resides." Moreover, unlike here, the plaintiff in Marshall had no intention of living at the premises (see Marshall v Tower Ins. Co. of N.Y., 12 Misc 3d 117OA [Sup Ct 2006]).

4404

CPLR R. 4404 Post-trial motion for judgment and new trial

Ortiz v Jaramillo, 2011 NY Slip Op 03822 (App. Div., 2nd 2011)

"[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court" (Rodriguez v City of New York, 67 AD3d 884, 886; see DeCrescenzo v Gonzalez, 46 AD3d 607, 608). CPLR 4404(a) provides that, "[a]fter a trial . . . by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict . . . and . . . may order a new trial . . . in the interest of justice." A motion pursuant to CPLR 4404(a) should not be granted on this ground unless "substantial justice has not been done, as would occur, for example, where . . . there has been misconduct on the part of attorneys" (Gomez v Park Donuts, 249 AD2d 266, 267 [citations omitted]; see Rodriguez v City of New York, 67 AD3d 884, 885).

Here, the comments of the plaintiffs' counsel, including his repeated denigration of the veracity of defense witnesses and his vouching for the plaintiffs' witnesses, were not isolated, were inflammatory, and were unduly prejudicial. These prejudicial comments so tainted the proceedings as to have deprived the defendant George Tsioulas of a fair trial (see Rodriguez v City of New York, 67 AD3d at 885-886; Brooks v Judlau Contr., Inc., 39 AD3d 447, 449, revd on other grounds 11 NY3d 204; Vassura v Taylor, 117 AD2d 798; see also McArdle v Hurley, 51 AD3d 741, 743; O'Neil v Klass, 36 AD3d 677, 677-678; Pagano v Murray, 309 AD2d 910, 911). Accordingly, the Supreme Court providently exercised its discretion in granting that branch Tsioulas's motion pursuant to CPLR 4404(a) which was to set aside the jury verdict and for a new trial in the interest of justice.

5015(a)(3); 317; 2005; Renewal Judgment

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 317

CPLR § 2005

Matter of Travelers Ins. Co. v Rogers, 2011 NY Slip Op 03729 (App. DIv., 1st 2011)

Supreme Court abused its discretion in refusing to vacate its prior order granting a permanent stay of arbitration of respondents Rogers and Westwater's uninsured motorist claim, which was granted upon their failure to appear at the petition hearing or to submit papers in opposition. Vacatur should have been granted on the ground of "fraud, misrepresentation, or other misconduct of an adverse party" (CPLR 5015[a][3]). A review of the record in this case reveals several potential instances of intentional and material misrepresentations of fact by petitioner, which, at least in part, may have formed the basis of Supreme Court's decision and order to permanently stay arbitration. Hence, it was an abuse of discretion to conclude that the failure to proffer a reasonable excuse precluded relief pursuant to CPLR 5015(a)(3), since that section does not require such a showing (cf. CPLR 5015 [a] [1]; see Shouse v Lyons, 4 AD3d 821, 822 [2004]). To the extent that some of respondents' allegations of fraud, misrepresentation or other misconduct are not conclusively established by the evidence in the record, they present issues of fact which should not be determined without holding a hearing (Readick v Readick, 80 AD3d 512, 513 [2011]; see also Tonawonda Sch. Emples. Fed. Credit Union v Zack, 242 AD2d 894, 894-95 [1997]).

Olivaria v Lin & Son Realty, Corp., 2011 NY Slip Op 03655 (App. Div., 1st 2011)

Relief under CPLR 5015(a)(1) was properly denied. The record shows that Lin did not receive process because it failed to maintain a current address on file with the Secretary of State for 18 years (see On Assignment v Medasorb Tech., LLC, 50 AD3d 342 [2008]; Business Corporation Law § 408).

The Supreme Court should not have concluded, however, that Lin's request for relief under CPLR 317 was untimely. The statute permits a defendant who has been "served with a summons other than by personal delivery" and has not appeared to defend the action upon a finding of the court that the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317). A defendant so served may be allowed to defend the action "within one year after [such defendant] obtains knowledge of entry of the judgment, but in no event more than five years after such entry . . ." (id.)^[FN1]. In making a CPLR 317 motion, a defendant does not have to come forward with a reasonable excuse for its default (see Pena v Mittleman, 179 AD2d 607, 609 [1992]).

By regarding the February 4, 2003 order as an entered judgment, the court reached the conclusion that the statutory five-year period had expired. This was error. "A judgment is entered when, after it has been signed by the clerk, it is filed by him" (CPLR 5016[a]). Unlike the 2003 order, the 2009 judgment was duly signed and entered by the County Clerk. Accordingly, the motion was timely because August 20, 2009 is the date of entry from which Lin's time is to be measured.

The lease between Lin and the injured plaintiff's employer provided for heating through perimeter ducts and made no mention of portable heaters. Lin's president states by affidavit that the company had no knowledge of the tenant's use of portable heaters. Thus, Lin has demonstrated, prima facie, that it has a meritorious defense to plaintiffs' claims. Moreover, it does not appear that Lin deliberately attempted to avoid notice of this action (see e.g. Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 143 [1986]). In the exercise of discretion, we therefore grant Lin's motion to vacate the default judgment pursuant to CPLR 317.

Casali v Cyran, 2011 NY Slip Op 03791 (App. Div., 2nd 2011)

To vacate his default, the plaintiff was required to demonstrate a reasonable excuse for the default and potentially meritorious opposition to the motion (see CPLR 5015[a]; Legaretta v Ekhstor, 74 AD3d 899; Rivera v Komor, 69 AD3d 833; Nowell v NYU Med. Ctr., 55 AD3d 573). The plaintiff's excuse for failing to oppose the motion of the defendant Daniel J. Cyran for summary judgment dismissing the compaint insofar as asserted against Cyran can only be classified as law office failure. Although the Supreme Court has the discretion to excuse a default resulting from law office failure (see CPLR 2005), here, the plaintiff's attorney, in his affirmation, admitted that there was "no excuse, reasonable or otherwise." Additionally, the plaintiff failed to establish that he had potentially meritorious opposition to the motion (see Bollino v Hitzig, 34 AD3d 711). Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate the prior order granting Cyran's motion for summary judgment dismissing the complaint insofar as asserted against Cyran.

n Tend Masoers Dist. Council Welfare Fund v Diamond Constr. & Maintenance, Inc., 2011 NY Slip Op 03815 (App. Div., 2nd 2011)

In an action for leave to enter a renewal judgment pursuant to CPLR 5014, nonparty Deutsche Bank National Trust Company appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated July 22, 2010, which denied its motion pursuant to CPLR 5015(a)(4) to vacate a renewal judgment of the same court dated January 11, 2010 on the ground that the Supreme Court lacked jurisdiction to issue the renewal judgment because Deutsche Bank National Trust Company was not joined as a necessary party.
ORDERED that the order is affirmed, with costs.
"Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants" (CPLR 1001[a]). This statute "limit[s] the scope of indispensable parties to those cases and only those cases where the determination of the court will adversely affect the rights of nonparties" (Matter of Castaways Motel v Schuyler, 24 NY2d 120, 125; see Spector v Toys "R" Us, Inc., 12 AD3d 358, 359).
Here, the Supreme Court properly found that nonparty Deutsche Bank National Trust Company did not need to be joined in the instant action in order to accord complete relief to the parties, and that Deutsche Bank National Trust Company was not inequitably affected by the renewal judgment.
In an action for leave to enter a renewal judgment pursuant to CPLR 5014, nonparty Deutsche Bank National Trust Company appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated July 22, 2010, which denied its motion pursuant to CPLR 5015(a)(4) to vacate a renewal judgment of the same court dated January 11, 2010 on the ground that the Supreme Court lacked jurisdiction to issue the renewal judgment because Deutsche Bank National Trust Company was not joined as a necessary party.

Release and Discharge

Johnson v Lebanese Am. Univ., 2011 NY Slip Op 03658 (App. Div. 1st 2011)

While the fact that plaintiff was not advised to consult with counsel is not dispositive of the enforceability of the Release (Skluth, 163 AD2d at 107), defendants' tying of the payment to plaintiff's return of the Release certainly had a bearing on plaintiff's opportunity to consult counsel. As Supreme Court recognized, the opportunity to consult counsel is at least a factor to be considered when analyzing the volition with which a party entered into a contract (see id.). However, with the payment depending on plaintiff's return of the signed Release it can hardly be said, as the court did, that plaintiff had "ample" opportunity to consult an attorney before signing the document.

For the foregoing reasons, we find that issues of fact exist as to whether plaintiff intended to relinquish employment discrimination claims when he executed the Release. Accordingly, Supreme Court erred in dismissing the complaint.

There is a dissent.

Stipulations and 2221

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

Churchill v Malek, 2011 NY Slip Op 03673 (App. Div. 1st 2011)

Given that, in this personal injury action, there is no claim to recover damages for emotional or psychological injury (see Valerio v Staten Is. Hosp., 220 AD2d 580 [1995]), or aggravation of a preexisting emotional or mental condition (see Sternberger v Offen, 138 AD2d 480 [1988]), plaintiff cannot be compelled to disclose confidential psychological or psychiatric records (cf. Carr v 583-587 Broadway Assoc., 238 AD2d 184, 185 [1997]). Defendant's unsubstantiated claim that plaintiff's mental illness might have caused the accident is insufficient to warrant mental health disclosure (see Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539 [1994]).

Defendant's argument that plaintiff is bound by prior stipulations is unavailing, since both documents were clearly denominated as orders. Equally unavailing is defendant's contention that plaintiff's motion to reargue was untimely. The prior order was never served with notice of entry; therefore, the thirty-day period set forth in CPLR 2221(d)(3) has not been triggered (see Zhi Fang Shi v Sanchez, 36 AD3d 486 [2007]).

Yerushalmi v Yerushalmi, 2011 NY Slip Op 02657 (App. DIv., 2nd 2011)

" A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion'" (Swedish v Beizer, 51 AD3d 1008, 1010; quoting Ellner v Schwed, 48 AD3d 739, 740; see CPLR 2221[e]; Matter of 171 Sterling, LLC v Stone Arts, Inc., 66 AD3d 688). " Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion'" (Matter of Orange & Rockland Util. v Assessor of Town of Haverstraw, 304 AD2d 668, 669, quoting Stone v Bridgehampton Race Circuit, 244 AD2d 403, 403; see City of New York v St. Paul Fire & Mar. Ins. Co., 21 AD3d 982).

Here, the defendant's motion, in effect, for leave to renew was not based upon new facts in existence at the time of the original motion which would have changed the prior determination, but consisted of factual material that was merely cumulative with respect to the factual material submitted in connection with the prior motion. Accordingly, the motion, in effect, for leave to renew was properly denied.

Prinz v New York State Elec. & Gas, 2011 NY Slip Op 02648 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, which had been granted by the Supreme Court in an earlier order. "A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination'" (Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480, quoting CPLR 2221[e][2]; see Renna v Gullo, 19 AD3d 472, 473; Kaufman v Kunis, 14 AD3d 542). Here, the allegedly new facts offered would not have changed the prior determination (see CPLR 2221[e][2]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 985).

Under the circumstances of this case, the Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to amend his complaint (see Kazakhstan Inv. Fund v Manolovici, 2 AD3d 249, 250).

Cross motions and SJ

CPLR R. 2215 Relief Demanded by other than moving party

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Daramboukas v Samlidis, 2011 NY Slip Op 03796 (App. Div., 2nd 2011)

Furthermore, the Supreme Court erred in denying Osdoby's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her on the ground that it was incorrectly labeled a cross motion. Although "[a] cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party" (Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844; see CPLR 2215; Kleeberg v City of New York, 305 AD2d 549, 550), a technical defect of this nature may be disregarded where, as here, there is no prejudice, and the opposing parties had ample opportunity to be heard on the merits of the relief sought (see CPLR 2001; Sheehan v Marshall, 9 AD3d 403, 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d 282, 283). While the Supreme Court also denied Osdoby's motion on the ground that it was not supported by pleadings and other available proof, Osdoby incorporated by reference the pleadings and exhibits submitted by Albert in support of his original motion, and those pleadings and exhibits were therefore properly before the court (see Carlson v Town of Mina, 31 AD3d 1176, 1177; Welch v Hauck, 18 AD3d 1096, 1098; Mahone v Washington, 17 AD3d 1059). On the merits, Osdoby made a prima facie showing, through her deposition testimony, that she could not be held liable for the plaintiffs' injuries. That testimony demonstrated that she was driving in a nonnegligent manner when her vehicle was struck in the rear by the white van driven by Manginaro, and that her vehicle did not come into contact with any of the vehicles involved in the second collision about 20 car lengths east of the location where she was struck (see Vehicle and Traffic Law § 1129[a]; Savarese v Cerrachio, 79 AD3d 725). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

The Supreme Court similarly erred in denying the Tam defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that it was incorrectly labeled a cross motion (see CPLR 2001; Sheehan v Marshall, 9 AD3d at 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d at 283). On the merits, the Tam defendants made a prima facie showing that Daniel Tam was lawfully stopped at a red light when his vehicle was struck in the rear, and that he had a nonnegligent explanation for coming into contact with other vehicles at the scene after his vehicle was struck in the rear (see Savarese v Cerrachio, 79 AD3d 725; Franco v Breceus, 70 AD3d at 769; Ortiz v Haidar, 68 AD3d 953; Malak v Wynder, 56 AD3d at 623; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d at 877). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

Fine v One Bryant Park, LLC, 2011 NY Slip Op 03659 (App. Div., 1st 2011)

It is undisputed that defendants failed to file the motion within the time period set by the assigned IAS judge. The motion court concluded that defendants failed to establish good cause for the delay in making the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). A motion court's exercise of its broad discretion in determining whether the moving party has established good cause for delay will not be overturned unless it was improvident (see Daley v M/S Capital NY LLC, 44 AD3d 313, 315 [2007]; Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108 [2006]). Inasmuch as the record establishes that defendants could have easily determined which judge was assigned to the matter (see Giudice v Green 292 Madison, LLC, 50 AD3d 506 [2008]), the court's exercise of its discretion was not improvident.

Homeland Ins. Co. of N.Y. v National Grange Mut. Ins. Co., 2011 NY Slip Op 03805 (App. Div., 2nd 2011)

The Supreme Court improvidently exercised its discretion in denying, as untimely, National Grange's cross motion for summary judgment. While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was untimely (see Brill v City of New York, 2 NY3d 648), "an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds" (Grande v Peteroy, 39 AD3d 590, 591-592; see Whitehead v City of New York, 79 AD3d 858, 860; Lennard v Khan, 69 AD3d 812, 814; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497). In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the merits of the untimely cross motion (see Grande v Peteroy, 39 AD3d at 592). Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party (see CPLR 3212[b]).

Lyebyedyev v Hoffman, 2011 NY Slip Op 03813 (App. Div., 2nd 2011)

Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, the defendant was required to make his motion for summary judgment no later than 60 days after the filing of the note of issue, unless he obtained leave of the court on good cause shown (see Kings County Supreme Court Uniform Civil Term Rules, Part C[6], formerly Rule 13). Here, the defendant moved for summary judgment approximately 90 days after the note of issue was filed. Since the vague and conclusory assertions made by the defendant's attorney regarding the pendency of a motion to strike the note of issue and a delay in the defendant's signing and notarizing of his own deposition transcript were insufficient to constitute good cause, the Supreme Court erred in entertaining the summary judgment motion (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648; Cohen-Putnam Agency, Ltd. v Hudson Bldg. Maintenance, Inc., 55 AD3d 653; State Farm Fire & Casualty v Parking Sys. Valet Serv., 48 AD3d 550; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Pierre v Feldman, 41 AD3d 454, 455).

Jurisdiction

CPLR § 302

Paolucci v Kamas, 2011 NY Slip Op 03823 (App. Div., 2nd 2011)

Personal jurisdiction can be conferred under CPLR 302(a)(1) "even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095; see Fischbarg v Doucet, 9 NY3d 375, 380). Here, however, the Supreme Court properly determined that the number, nature, and quality of the defendants' contacts with New York do not evince purposeful activities by which the defendants availed themselves of the benefits and protections of New York law (see Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861; see also Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; cf. Fischbarg v Doucet, 9 NY3d 375; Grimaldi v Guinn, 72 AD3d 37).

The Supreme Court also properly determined that personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3) based upon tortious activity occurring outside New York, causing injury within New York. The plaintiff failed to demonstrate prima facie that the defendants "[1] regularly do[ ] or solicit[ ] business, or engage[ ] in any other persistent course of conduct, or derive[ ] substantial revenue from goods used or consumed or services rendered, in the state," or "[2] expect[ ] or should reasonably expect the act to have consequences in the state and derive[ ] substantial revenue from interstate or international commerce" (CPLR 302[a][3][i], [ii]; see Ingraham v Carroll, 90 NY2d 592; cf. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210).

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

Moot?

E-Z Eating 41 Corp. v H.E. Newport L.L.C., 2011 NY Slip Op 03652 (App. Div., 1st 2011)

Given that the time to cure the alleged lease default has expired, and that the E-Z Eating 41 Corp. has surrendered possession of the premises, the orders appealed are presently moot (see Matter of Johnson v Pataki, 91 NY2d 214, 222 [1997]; cf. Automated Ticket Sys., Ltd. v Quinn, 90 AD2d 738, 739 [1982] [dismissing claims for declaratory relief relating to contract; "[t]he contract having expired, all of the rights asserted by plaintiff against defendants have accrued, and plaintiff should seek its remedy in an action at law for damages"] [internal quotation marks omitted]). In addition, there is no indication that the appeal should be excepted from the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

While the general rule in New York is to simply dismiss an appeal which has been rendered moot, vacatur of an order or judgment on appeal has, in circumstances such as those presented here, been held to be an appropriate exercise of discretion where necessary " in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent'" (see Funderburke v New York State Dept. of Civ. Serv., 49 AD3d 809, 811 [2008], quoting Matter of Hearst Corp. v Clyne, 50 NY2d at 718).

There is a long dissent.