Appellate Division

Judgment as a matter of law CPLR 4401 & 4404

CPLR R. 4401 Motion for judgment during trial

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

Adler v Bayer, 2010 NY Slip Op 07300 (App. Div., 2nd 2010)

"A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nomoving party" (Hamilton v Rouse, 46 AD3d 514, 516; Tapia v Dattco, Inc., 32 AD3d 842, 844). In considering such a motion, "the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556).

CPLR R. 3016(b) with particularity

CPLR R. 3016 Particularity in specific actions

Nicosia v Board of Mgrs. of the Weber House Condominium, 2010 NY Slip Op 07254 (App. Div., 1st 2010)

Plaintiff's fraud claim should be dismissed for the additional reason that it is not pleaded with particularity (CPLR 3016[b]). A cause of action for fraud requires plaintiff to plead: (1) a material misrepresentation of a fact, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance and (5) damages (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Plaintiff's complaint is bare-bones. Among other deficiencies, plaintiff does not allege how he learned that the Board was purporting to exercise its right of first refusal. Plaintiff attaches an August 6, 2007 letter that the Board sent to Axminster's attorney stating that the Board was electing to exercise its right of first refusal. However, plaintiff does not articulate who communicated this information to him or when he received this information. Thus, we are left to guess that somehow Axminster's attorney communicated the Board's decision to plaintiff at some point. Plaintiff also does not explain how he relied to his detriment on the Board's alleged exercise of its right of first refusal. While we can suppose that plaintiff's reliance somehow involved his refraining from taking steps to enforce the closing, it is not for us to interject our supposition into plaintiff's pleading. Nor is it our place to explain what damages might have flowed from the failure to close. The dissent points to allegations from the tortious interference cause of action where plaintiff alleges that because of defendants' wrongful conduct, "plaintiff's contract with Axminster to purchase the Unit was not consummated." However, this language does not appear in plaintiff's cause of action for fraud. And, even if it did, this language would hardly satisfy the CPLR 3016(b) requirement that the facts constituting the fraud "be stated in detail." Certainly, what plaintiff did or did not do after learning that the Board was exercising its right of first refusal, and what damages flowed from that action or inaction, are within plaintiff's purview.

While the dissent may be correct that plaintiff can prevail on his fraud claim "if Axminster reasonably relied on the misrepresentation in selling the unit to Kesy," plaintiff has not alleged this. Rather, plaintiff's allegations concerning Axminster are more nefarious — that Axminster directly breached its duties to plaintiff by failing to perform "its required due diligence to determine if the sale to KESY was in accordance with the By-laws."

Thus, the facts of this case could very well eventually support a fraud claim. However, plaintiff has not pleaded these facts sufficiently and, unlike the dissent, we decline to speculate and infer the facts for him, especially given our liberal rules regarding amendment of pleadings.

The bold is mine.

Black Tie Optional: Formal and Informal Judicial Admissions

Zegarowicz v Ripatti, 2010 NY Slip Op 07163 (App. Div., 2nd 2010)

Facts admitted by a party's pleadings constitute formal judicial admissions (see Falkowski v 81 & 3 of Watertown, 288 AD2d 890, 891; Prince, Richardson on Evidence § 8-215, at 523-524 [Farrell 11th ed]). Formal judicial admissions are conclusive of the facts admitted in the action in which they are made (see Coffin v Grand Rapids Hydraulic Co., 136 NY 655).

Here, HVT made a formal judicial admission that it was listed as owner on the certificate of title. A certificate of title is prima facie evidence of ownership (see Vehicle and Traffic Law § 2108[c]; Switzer v Aldrich, 307 NY 56; Corrigan v DiGuardia, 166 AD2d 408; Salisbury v Smith, 115 AD2d 840) and, thus, the Supreme Court erred in, upon reargument, adhering to its original determination [*3]granting the motion of the defendant HVT, Inc., pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it. Since this presumption of ownership is not conclusive, and may be rebutted by evidence which demonstrates that another individual owned the vehicle in question (see Aronov v Bruins Transp., 294 AD2d 523; Dorizas v Island Insulation Corp., 254 AD2d 246), the matter must be remitted to the Supreme Court, Westchester County, for a new trial on the issue of liability, a trial on the issue of damages, if warranted, and the entry of an appropriate amended judgment thereafter.

Roxborough Apts. Corp. v Kalish, 2010 NY Slip Op 20402 (App. Term. 1st 2010)

Statements made in a pleading verified by a person with personal knowledge of the content of the statements are formal judicial admissions, which dispense with the production of evidence and concede, for the purposes of the litigation in which the pleading was prepared, the truth of the statements (see People v Brown, 98 NY2d 226, 232 n2 [2002]; see also CPLR 3020[a], 3023). However, statements made in a pleading "upon information and belief" do not [*2]constitute judicial admissions (see Empire Purveyors, Inc. v Weinberg, 66 AD3d 508 [2009]; Scolite Intern. Corp. v Vincent J. Smith, Inc., 68 AD2d 417 [1979];see also Rosar Realty Corp. v Leavin, 7 AD3d 295 [2004]; cf. Bogoni v Friedlander, 197 AD2d 281 [1994], lv denied 84 NY2d 803 [1994]; Hirsch, Inc. v Town of N. Hempstead, 177 AD2d 683 [1997]; but see Ficus Investments, Inc. v Private Capital Mgt., LLC, 61 AD3d 1 [2009]).

Here, the statements in the underlying holdover petition were verified by landlord's attorney upon information and belief. Therefore, those statements do not constitute formal judicial admissions (cf. Riverside Syndicate, Inc. v Richter, 26 Misc 3d 137[A], 2010 NY Slip Op 50183[U] [2010]; East Egg Assoc. v Diraffaele, 158 Misc 2d 364 [1993], affd 160 Misc 2d 667 [1994]). Moreover, none of the other documents submitted by tenants on their motion contain formal judicial admissions by landlord regarding the existence of a lease containing an attorneys' fees provision. We note in this connection that many of the documents were generated in other judicial proceedings and would constitute, at most, informal judicial admissions, which do not conclusively bind landlord (see Matter of Liquidation of Union Indem. Ins. Co. of New York, 89 NY2d 94 [1996]; Baje Realty Corp. v Cutler, 32 AD3d 307 [2006]).

The bold is mine.

Best Evidence / Written Agreements / Electronic Signatures

Eccleston Hall v Paez, 2010 NY Slip Op 07142 (App. Div., 2nd 2010)

" The best evidence of what parties to a written agreement intend is what they say in their writing'" (Greenfield v Philles Records, 98 NY2d 562, 569, quoting Slamow v Del Col, 79 NY2d 1016, 1018). Further, "[w]hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations" (Franklin Apt. Assocs., Inc. v Westbrook Tenants Corp., 43 AD3d 860, 861 [internal citations omitted]; see Gutierrez v State of New York, 58 AD3d 805, 807). The rule that "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) is of special import in the context of real property transactions where commercial certainty is important and the contract was negotiated between sophisticated counseled parties negotiating at arms length (see M & R Rockaway v SK Rockaway Real Estate Co., 74 AD3d 759).

Torres v D'Alesso, 2010 NY Slip Op 07127 (App. Div., 1st 2010)

When both parties to a real estate sales contract have executed and delivered to the other party a completely integrated written contract containing the specific language that any prior oral agreements or representations are merged into the writing, and that "neither party rel[ies] upon any statement made by anyone else that is not set forth in this contract," such a contract may not be avoided by a claim of a prior orally agreed- upon condition precedent to the effectiveness of the contract. The rule that the parties to a written contract may orally agree to a condition precedent to the effectiveness of the contract, so that a party must be permitted to prove by parol evidence a claim that the contract never became effective because the condition precedent never occurred (see Hicks v Bush, 10 NY2d 488, 491 [1962]), is not applicable under circumstances such as those presented here. Even if the rule were applicable here, the purported condition would be unenforceable because it contradicts terms of the writing. And, the words used to create the condition lack the "clear language showing that the parties intended to make it a condition" (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992]) that is necessary to validly create a condition precedent to the effectiveness of the contract.

Naldi v Grunberg, 2010 NY Slip Op 07079 (App. Div., 1st 2010)

At the outset of our analysis, we reject defendant's argument that an e-mail can never constitute a writing that satisfies the statute of frauds of GOL § 5-703 ("Conveyances and [*5]contracts concerning real property required to be in writing")^[FN2]. Again, this Court has held in other contexts that e-mails may satisfy the statute of frauds (see Williamson v Delsener, 59 AD3d 291 [2009] [stipulation settling litigation]; Stevens v Publicis, S.A., 50 AD3d 253, 254-255 [2008], lv dismissed 10 NY3d 930 [2008] [modification of written agreement barring oral changes], citing Rosenfeld v Zerneck, 4 Misc 3d 193 [Sup Ct, Kings County 2004] [stating, in dicta, that an e-mail reflecting an agreement to sell real property may satisfy the statute of frauds, although the e-mail at issue failed to state all essential terms]; see also Bazak Intl. Corp. v Tarrant Apparel Group, 378 F Supp 2d 377, 383-386 [SD NY 2005] [holding that e-mail satisfied the requirement of a "writing in confirmation of the contract" under New York UCC § 2-201(2)])^[FN3]. We reaffirm the holdings of Williamson and Stevens.

Settled without a stipulation. How does it get back on the calendar?

Santana v Vargas, 2010 NY Slip Op 07160 (App. Div., 2nd 2010)

Contrary to the defendants' contention, the action was not marked "off" or stricken from the trial calendar within the meaning of CPLR 3404 (see Freehill v ITT Sheraton Corp., 74 AD3d 876; Long-Waithe v Kings Apparel Inc., 10 AD3d 413, 414). Rather, the Supreme Court's order dated June 1, 2007, indicates that the case was marked "settled" after the parties reached a tentative agreement. Accordingly, CPLR 3404 is inapplicable (see Long-Waithe v Kings Apparel Inc., 10 AD3d at 413; Baez v Kayantas, 298 AD2d 416), and the plaintiff was not required to demonstrate a reasonable excuse, meritorious cause of action, lack of intent to abandon, and lack of prejudice in order to have the matter restored to the active trial calendar (see Long-Waithe v Kings Apparel Inc., 10 AD3d at 41

The bold is mine.

Collateral Estoppel

This case, by itself, doesn't tell you much. But if you look at the links, well, that helps.

Verch v Peter Charles Assoc., Ltd., 2010 NY Slip Op 06788 (App. Div., 2nd 2010)

Contrary to the plaintiffs' contention, the doctrine of collateral estoppel is inapplicable to the instant case, as there was no prior action in which the respondents had a full and fair opportunity to litigate the issues raised in the sixth cause of action of the amended complaint (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 455; Sneddon v Koeppel Nissan, Inc., 46 AD3d 869, 870; G. Rama Constr. Enters., Inc. v 80-82 Guernsey St. Assoc., LLC, 43 AD3d 863, 865; Fischer v Sadov Realty Corp., 34 AD3d 632, 633)

The bold is mine.

Forum Non Con (CPLR R. 327)

CPLR R. 327 Inconvenient forum

Matter of OxyContin II, 2010 NY Slip Op 06636 (App. Div., 2nd 2010)

ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, with costs, and the defendants' motion pursuant to CPLR 327(a) to dismiss the complaints of the plaintiffs who reside outside of New York State is granted on condition that the defendants stipulate (1) that they will accept service of process in newly commenced out-of-state actions upon the same causes of action as those asserted in the instant complaints by the out-of-state plaintiffs; (2) that they will waive any defenses which were not available to them in New York at the time of service upon them of a copy of this decision and order; (3) that each deposition of any of their home-office employees taken by a plaintiff's counsel may be cross-noticed and deemed to be taken in all of the cases of that counsel; and (4) that, in the new forum, they will not raise any objection to having their home-office employees appear for deposition or trial on the ground of venue or location of the lawsuit; the out-of-state plaintiffs' time to commence the new actions shall [*2]be within 90 days after service of the stipulation upon the plaintiffs; and it is further,

ORDERED that the defendants' time to stipulate shall be within 30 days after service upon them of a copy of this decision and order; in the event that the defendants fail to so stipulate, then the order is affirmed, with costs.

****

The Court of Appeals has said that, "[o]rdinarily, nonresidents are permitted to enter New York courts to litigate their disputes as a matter of comity. Obviously, however, our courts are not required to add to their financial and administrative burdens by entertaining litigation which does not have any connection with this State. The common-law doctrine of forum non conveniens, also articulated in CPLR 327, permits a court to . . . dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [footnote omitted]). The Supreme Court held that the actions brought by the nonresident plaintiffs should be adjudicated in New York State. We disagree and reverse, because we conclude that, although jurisdictionally sound, the actions brought by the nonresidents would be better adjudicated elsewhere.

On a motion to dismiss on the ground of forum non conveniens, the burden is on the defendant challenging the forum to demonstrate that considerations relevant to private or public interest militate against accepting or retaining the litigation (see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028, 1029; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts" (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966; see Jackam v Nature's Bounty, Inc., 70 AD3d 1000, 1001; Tiger Sourcing [HK] Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002, 1003). Also of importance, inter alia, is the extent to which the defendant will face particular difficulties in litigating the claim in this State (see Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 73;Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333, 338; Waterways Ltd. v Barclays Bank PLC, 174 AD2d 324, 327). In this case, these considerations weigh heavily against retaining the actions of the nonresident plaintiffs.

There is no significant dispute that the Oxycontin involved was not manufactured in New York, and the defendant's corporate offices are not located in this State. None of the nonresident plaintiffs purchased Oxycontin in New York, none ingested the drug here and, importantly, none received treatment for alleged resulting injuries in this State. Consequently, witnesses with critical information on both proximate cause and damages do not reside in New York. That fact presents substantial difficulties for the defendants inasmuch as New York courts lack the authority to subpoena out-of-state nonparty witnesses (see Judiciary Law § 2-b[1]; Wiseman v American Motors Sales Corp., 103 AD2d 230, 234 ["service of a subpoena on a nonparty witness outside this State is void because no authorization for such service exists"]). Moreover, "[u]nder[*3]established conflict of laws principles, the applicable law should be that of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation'" (Matter of Doe, 14 NY3d 100, 109, quotingBabcock v Jackson, 12 NY2d 473, 481; see King v Car Rentals, Inc., 29 AD3d 205, 208). Thus, inasmuch as the hundreds of nonresident plaintiffs come from almost all of the 50 states and Puerto Rico, should New York courts retain those cases, they might well be called upon to apply different principles of law to identical claims. Moreover, under the circumstances presented here, we can find no strong counterbalancing consideration for retaining the cases of the out-of-state plaintiffs in our courts. Consequently, we find that the Supreme Court improvidently exercised its discretion in denying the defendant's motion to dismiss. Nevertheless, in order to ensure the availability of a forum for the claims of the nonresident plaintiffs, our reversal is conditioned on the defendants' entering into a stipulation as indicated herein (see Jackam v Nature's Bounty, Inc., 70 AD3d at 1002; Turay v Beam Bros. Trucking, Inc., 61 AD3d at 967; Brinson v Chrysler Fin., 43 AD3d 846, 848).

The bold is mine.

Same effect, but different cause. CPLR R. 3216

CPLR R. 3216 Want of prosecution

CPLR § 2004 Extensions of time generally

Sicoli v Sasson, 2010 NY Slip Op 06625 (App. Div., 2nd 2010)

The recertification order of the Supreme Court dated July 16, 2008, directing the plaintiffs to file a note of issue within 90 days and warning that the action would be deemed dismissed without further order of the court if the plaintiffs failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Rodriguez v Five Towns Nissan, 69 AD3d 833; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783; Sustad v Karagiannis, 305 AD2d 664). Having received a 90-day notice, the plaintiffs were required either to file a timely note of issue or to move, before the default date, for an extension of time pursuant to CPLR 2004 (see Bokhari v Home Depot U.S.A., 4 AD3d 381, 382; Apicella v Estate of Apicella, 305 AD2d 621; Aguilar v Knutson, 296 AD2d 562). The plaintiffs did neither.

To avoid the dismissal of the action, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply with the recertification order and the existence of a potentially meritorious cause of action (see Rodriguez v Five Towns Nissan, 69 AD3d 833; Bokhari[*2]v Home Depot U.S.A., 4 AD3d 381, 382; Sustad v Karagiannis, 305 AD2d 664). Even assuming that the plaintiffs provided a reasonable excuse for their default (see CPLR 2005; Giannoccoli v One Cent. Park W. Assoc., 15 AD3d 348, 349; Betty v City of New York, 12 AD3d 472, 473-474; Association for Children with Learning Disabilities, Nassau Ch. v Zafar, 115 AD2d 580, 581), they failed to demonstrate a potentially meritorious cause of action. The affirmation of the plaintiffs' medical expert was insufficient to demonstrate that the causes of action alleging medical malpractice and lack of informed consent were potentially meritorious, since, inter alia, the medical expert failed to establish that his opinions were grounded in facts appearing in the hospital or medical records (see Bollino v Hitzig, 34 AD3d 711; Perez v Astoria Gen. Hosp., 260 AD2d 457, 458; Nepomniaschi v Goldstein, 182 AD2d 743, 744). Accordingly, the Supreme Court properly granted the motions, in effect, pursuant to CPLR 3216 to dismiss the action and properly denied the plaintiffs' cross motion to extend the time to serve and file a note of issue.

The bold is mine. Note that the Appellate Division says that it has the same effect as a "valid" 90-day notice. Look at the requirements for a valid 90-day notice. The recertification order is missing something. Lisa Solomon and Marshall R. Isaacs wrote about this not too long ago.

Rely on plaintiff’s records at your own peril, but only if your insurance company doctor is less than honest.

JT noted an earlier case with similar facts. I think I posted it too, but I don't feel like looking around for it.

Ortiz v Orlov, 2010 NY Slip Op 06623 (App. Div., 2nd 2010)

The defendants, all of whom relied on the same submissions in support of their respective motions, failed to meet their prima facie burdens 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 NY 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motions, they relied upon, inter alia, the medical reports of the plaintiff's treating physicians. At least two of those reports revealed that the plaintiff had significant limitations in her cervical and lumbar spine range of motion more than seven months post-accident (see Guerrero v Bernstein, 57 AD3d 845; Mendola v Demetres, 212 AD2d 515).

Since the defendants did not meet their prima facie burdens, it is unnecessary to decide whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Guerrero v Bernstein, 57 AD3d at 845; Coscia v 938 Trading Corp., 283 AD2d 538).

The bold is mine. No-fault types should pay attention. Sure, this isn't really procedural. It will be. Eventually. I won't explain. Sorry.

No money to hire an attorney. To bad so sad. CPLR R. 5015

CPLR R. 5015 Relief from judgment or order

O'Donnell v Frangakis, 2010 NY Slip Op 06622 (App. Div., 2nd 2010)

A defendant seeking to vacate an order or judgment entered upon his or her default in appearing and answering the complaint must demonstrate a reasonable excuse for [his or her] delay in appearing and answering the complaint and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; see CPLR 5015[a][1]; Gray v B.R. Trucking Co., 59 NY2d 649, 650; Li Gang Ma v Hong Guang Hu, 54 AD3d 312; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522). The defendant's excuses that her insurer denied and disclaimed coverage and that she could not initially afford an attorney were insufficient to excuse her lengthy delay in appearing (see Matter of Nieto, 70 AD3d 831; Toland v Young, 60 AD3d 754;Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716, 717; Rottenberg v Lerner, 232 AD2d 395). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Toland v Young, 60 AD3d 754; Levi v Levi, 46 AD3d 519, 520; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144). Accordingly, the defendant's motion should have been denied.

The bold is mine.

If the insurer denied and disclaimed coverage, how will plaintiff get paid. The Appellate DIvision cites to cases where the party claiming lack of funds failed to provide sufficient proof, so it isn't always a too bad so sad situation. But what proof would the court need? Tax returns?