Appellate Division

CPLR R. 2106: can’t be a party

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Morrison Cohen LLP v Fink, 2011 NY Slip Op 00779 (App. Div., 1st 2011)

To successfully oppose a motion for leave to enter a default judgment, a defendant must demonstrate a reasonable excuse for the default and a meritorious defense. As a party to the action, although an attorney by profession, defendant was required to submit an affidavit in opposition to plaintiff's motion for a default judgment. His submission of an affirmation instead of an affidavit was improper, "and its contents [were correctly] disregarded by the Supreme Court, thereby rendering the opposing papers insufficient to defeat the plaintiff's motion" (Pisacreta v Minniti, 265 AD2d 540 [1999]). Defendant's papers were deficient for the additional reason that the affidavit of the postal service worker on which he relied to demonstrate the inadequacy of "nail and mail" service pursuant to CPLR 308(4) was notarized by defendant himself, a party to the action.

Defendant is not entitled to relief, in the alternative, under CPLR 317 since he has failed to demonstrate that he "did not personally receive notice of the summons in time to defend" (id.; see Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 517 [2005]).

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22 NYCRR 202.7(a)(2)

22 NYCRR 202.7 Calendaring of motions; uniform notice of motion form; affirmation of good faith

Garcia v City of New York, 2011 NY Slip Op 00629 (App. Div., 1st 2011)

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered December 24, 2009, which granted plaintiff's motion pursuant to CPLR 3126 to strike the answers of defendants City of New York, 1515 Bruckner Blvd. LLC, Citywide Contractors LLC and Kaila Construction Corporation unless they appear for their respective examinations before trial within 60 days of service of a copy of the order, unanimously affirmed, without costs.

Defendants failed to comply with a preliminary conference order and two compliance conference orders issued over a period of 14 months to produce witnesses for examinations before trial. However, given counsel's failure to file an affirmation in compliance with 22 NYCRR 202.7(a)(2), it was a provident exercise of discretion to provide defendants with a final opportunity to produce witnesses for examinations before trial (see Reidel v Ryder TRS, Inc., 13 AD3d 170 [2004]).

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Construction in the first department

Bajraktari Mgt. Corp. v American Intl. Group, Inc., 2011 NY Slip Op 00621 (App. Div., 1st 2011)

The insurance policy clearly and unambiguously defines "Continuity Date" as December 29, 2004. The motion court correctly declined to consider parol evidence to ascertain the parties' intention as to that date (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). "[A] contract is not rendered ambiguous just because one of the parties attaches a different, subjective meaning to one of its terms" (Moore v Kopel, 237 AD2d 124, 125 [1997]).

Plaintiffs' remaining arguments based upon their contention that the policy is ambiguous are unavailing. Their argument that the policy should be construed in a manner that would be consistent with "the reasonable expectations of a New York City property owner" is also unavailing (see Slayko v Security Mut. Ins. Co., 98 NY2d 289, 296-297 [2002]).

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Exclusion of witnesses and CPLR 4518(a)

I probably would have stumbled across it eventually, but I found it by way of JT.

CPLR R. 4518 Business records

Yellow Book of N.Y., L.P. v Cataldo, 2011 NY Slip Op 00678 (App. Div., 2nd 2010)

Cataldo's contention that the Supreme Court erred in denying his request to exclude a witness from the courtroom is without merit. The record supports the Supreme Court's determination that the witness at issue was employed by the plaintiff's successor-in-interest and was, therefore, a party representative. As such, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial (see Auger v State of New York, 263 AD2d 929, 932; Liquori v Barrow, 160 AD2d 843, 844; Carlisle v County of Nassau, 64 AD2d 15, 18). Further, Cataldo failed to establish that he suffered any prejudice due to the continued presence of the witness (see People v Scheck, 24 AD3d 574).

Additionally, Cataldo contends that the plaintiff's documents should not have been admitted into evidence pursuant to the business records exception to the hearsay rule because the plaintiff's witness was employed by the plaintiff's successor-in-interest and because she lacked personal knowledge of the information contained in the documents. As the witness at issue was fully familiar with the plaintiff's record-keeping procedures and practices, this contention is without merit (see CPLR 4518[a]; General Bank v Mark II Imports, 290 AD2d 240, 241). Cataldo's remaining contentions regarding the court's evidentiary rulings are unpreserved for appellate review.

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Clear and Convincing evidence required for injunction:

S.J.J.K. Tennis, Inc. v Confer Bethpage, LLC, 2011 NY Slip Op 00670 (App. Div., 2nd 2011)

In order to prevail upon a motion for a preliminary injunction, the moving party has the burden of demonstrating, by clear and convincing evidence, (1) the likelihood of success on the merits of the action, (2) that it will suffer irreparable injury absent the issuance of a preliminary injunction, and (3) that the balance of equities is in its favor (see CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; Winchester Global Trust Co. Ltd. v Donovan, 58 AD3d 833, 834; Winzelberg v 1319 50th Realty Corp., 52 AD3d 700, 702; Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642, 643; Stockley v Gorelik, 24 AD3d 535). The purpose of a preliminary injunction is to maintain the status quo pending determination of the action (see Ruiz v Meloney, 26 AD3d 485, 486; Ying Fung Moy v Hohi Umeki, 10 AD3d 604, 605). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Doe v Axelrod, 73 NY2d 748, 750; Ruiz v Meloney, 26 AD3d at 486; Ying Fung Moy v Hohi Umeki, 10 AD3d at 605).

In the instant case, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for a preliminary injunction (see Mr. Natural, Inc. v Unadulterated Food Prods., 152 AD2d 729, 730; U.S. Ice Cream Corp. v Carvel Corp., 136 AD2d 626, 628).

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CPLR 317, 5015(a)(1)(3), and 3215(f)

CPLR R. 5015 Relief from judgment or ordersummons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

CPLR § 3215 Default judgment

Jackson v Professional Transp. Corp., 2011 NY Slip Op 00650 (App. Div., 2nd 2011)

The plaintiff correctly contends that the Supreme Court erred in granting the motion of the defendant Professional Transportation Corp. (hereinafter the defendant), inter alia, to vacate an order dated October 27, 2008, and the judgment entered December 10, 2009, upon the defendant's default. CPLR 317 allows a court to vacate a default where service has been made upon a defendant by means other than personal delivery and where the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317). Here, by its own admission, the defendant received the summons and complaint well before the motion for a default judgment was made and in ample time to seek leave to serve a late answer. Accordingly, the defendant failed to establish that it did not receive the summons in time to defend within the meaning of the statute (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632; SFR Funding, Inc. v Studio Fifty Corp., 36 AD3d 604, 605; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 517-518; Fleetwood Park Corp. v Jerrick Waterproofing Co., 203 AD2d 238, 239; Essex Credit Corp. v Tarantini Assoc., 179 AD2d 973, [*2]974).

Additionally, the defendant failed to demonstrate a reasonable excuse under CPLR 5015(a)(1) for its pattern of willful default and neglect (see Campbell-Jarvis v Alves, 68 AD3d 701, 702; Roussodimou v Zafiriadis, 238 AD2d 568, 569; Merwitz v Dental Care Sers., 155 AD2d 748, 750), and its unsubstantiated claims that the default was occasioned by the conduct of its insurance broker or its liability carrier are unavailing (see Gartner v Unified Windows, Siding & Doors, Inc., 71 AD3d at 632; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d at 518). Although the question of whether the defendant asserted a potentially meritorious defense need not be reached in view of the foregoing (see Burnett v Renne, 32 AD3d 449,450), we note, in any event, that the defendant's submissions failed to proffer a potentially meritorious defense.

The defendant similarly failed to establish that the default judgment was procured through fraud or misrepresentation within the meaning of CPLR 5015(a)(3) (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 69-70). Likewise, the verified complaint satisfied the plaintiff's obligation to file proof of the facts constituting the claim with the court pursuant to CPLR 3215(f), and even if the verified complaint did not satisfy the requirements of CPLR 3215(f), the default judgment would not have been rendered a nullity (see Araujo v Aviles, 33 AD3d 830; Coulter v Town of Highlands, 26 AD3d 456, 457).

The bold is mine I'll pull the cases cited in the last line some other time. If I'm interested, you should be too.

CPLR R. 3211(a)(1): Affidavits are not documentary evidence. Also IK.

The decision will surely be of use to some no-fault types. For a case with a more intricate discussion of what documentary evidence is and is not, read Fontanetta.

CPLR R. 3211(a)(1)

Hernandez v Chefs Diet Delivery, LLC, 2011 NY Slip Op 00647 (App. Div., 2nd 2011)

Contrary to the determination of the Supreme Court, the defendants failed to submit documentary evidence conclusively establishing that the plaintiffs were independent contractors and not employees (see generally Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87-88; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520). Initially, the federal income tax documents submitted by the defendants which identified some of the plaintiffs as independent contractors were insufficient to conclusively establish that the plaintiffs and the other drivers in the putative class were independent contractors. "While the manner in which the relationship is treated for income tax purposes is certainly a significant consideration, it is generally not singularly dispositive" (Gagen v Kipany Prods., Ltd., 27 AD3d 1042, 1043; see Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882). Furthermore, the various internal documents and the noncompete and confidentiality agreement signed by one of the plaintiffs were similarly insufficient to conclusively establish that the plaintiffs and the other putative class members were independent contractors. "The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive" (Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516, 518; see Gfeller v Russo, 45 AD3d 1301; Shah v Lokhandwala, 265 AD2d 396; Matter of Wilde [Enesco Imports Corp.—Sweeney], 236 AD2d 722, [*3]723; Carrion v Orbit Messenger, 192 AD2d 366; Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 AD2d 220, 222). In fact, to the extent that the noncompete provision of the agreement prohibited any of the drivers from engaging in other businesses that deliver food products on a regularly scheduled basis, the agreement itself weighed in favor of a finding that the drivers were not independent contractors (see Bynog v Cipriani Group, 1 NY3d at 198; cf. Rokicki v 24 Hour Courier Serv., 294 AD2d 555; Matter of Seaver [Glens Falls Newspapers-Hartnett], 162 AD2d 841). To the extent that the Supreme Court relied on the affidavits of several of the defendants, the Supreme Court erred as those affidavits were not documentary evidence (see Suchmacher v Manana Grocery, 73 AD3d 1017; Fontanetta v John Doe 1, 73 AD3d 78, 85; Berger v Temple Beth-El of Great Neck, 303 AD2d 346).

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Judicial estoppel

Ferreira v Wyckoff Hgts. Med. Ctr., 2011 NY Slip Op 00641 (App. Div., 2nd 2011)

WHMC's contention that the doctrine of judicial estoppel barred the plaintiff from arguing at trial that the decedent was stillborn is without merit. The doctrine of judicial estoppel will [*2]be applied when a party has secured a judgment in his or her favor by adopting the prior position, and then has sought to assume a contrary position simply because his or her interests have changed (see Matter of One Beacon Ins. Co. v Espinoza, 37 AD3d 607; Matter of State Farm Mut. Auto. Ins. Co. v Allston, 300 AD2d 669; Bono v Cucinella, 298 AD2d 483). Although the plaintiff previously argued that the decedent was born alive, the plaintiff never obtained a judgment in her favor by adopting that position. Therefore, judicial estoppel did not bar the plaintiff from arguing at trial that the decedent was stillborn.

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SJ motion in lieu of complaint: CPLR § 3213

CPLR § 3213 Motion for summary judgment in lieu of complaint

Bloom v Lugli, 2011 NY Slip Op 00635 (App. Div., 2nd 2011)

Pursuant to CPLR 3213, a party may bring a motion in lieu of complaint when the action is "based upon an instrument for the payment of money only or upon any judgment." If an instrument contains an unconditional promise to pay a sum certain over a stated period of time, it is considered an instrument for the payment of money only (see Comforce Telecom, Inc. v Spears Holdings Co., Inc., 42 AD3d 557; Gregorio v Gregorio, 234 AD2d 512).

"The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" (Weissman v Sinorm Deli, 88 NY2d 437, 444; see Ro & Ke, Inc. v Stevens, 61 AD3d 953; Stallone v Rostek, 27 AD3d 449). The test as to when a document qualifies as an instrument for the payment of money only under CPLR 3213 is as follows:

"Where the instrument requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable. Put another way, a document comes within CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms.'"

(Weissman v Sinorm Deli, 88 NY2d at 444 [citations omitted]; see Stallone v Rostek, 27 AD3d 449, 450; Larkfield Manor v KBK Enters., 5 AD3d 444, 444-445; Eisenberg v HSBC Payment Serv. (USA), 307 AD2d 950, 951).

Here, the plaintiff failed to establish that the subject agreement was an instrument for the payment of money only. The terms of the sale of the plaintiff's interest in the joint venture to the defendants was subject to the continuation by the plaintiff of his legal representation of the defendants and the joint venture. Therefore, outside proof would be required to determine if the plaintiff satisfied his obligations pursuant to the agreement (see Ippolito v Family Medicine of Tarrytown & Ossining, LLP, 46 AD3d 752, 753).

The Supreme Court failed to interpret the agreement as drafted and improperly severed the plaintiff's obligation to continue providing legal representation from the remainder of the agreement. Having done so, the Supreme Court erred in granting judgment in favor of the plaintiff on his motion brought pursuant to CPLR 3213 (see Ippolito v Family Medicine of Tarrytown & Ossining, LLP, 46 AD3d 752; Stallone v Rostek, 27 AD3d 449).

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Overbroad discovery demands

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

Azznara v Strauss, 2011 NY Slip Op 00634 (App. Div., 2nd 2010)

Although the plaintiff's pharmacy and health insurance records may properly be discovered (see CPLR 4504; Neferis v DeStefano, 265 AD2d 464, 466; Moore v Superior Ice Rink, 251 AD2d 305), the defendants' demand with respect to those two items, as currently propounded, is patently overbroad and burdensome (see Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Bongiorno v Livingston, 20 AD3d 379, 382; Bettan v Geico Gen. Ins. Co., 296 AD2d 469, 471; Holness v Chrysler Corp., 220 AD2d 721, 722). Accordingly, that branch of the defendants' motion which was to compel the plaintiff to provide authorizations for the release of all of his pharmacy and health insurance records was properly denied.

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