Appellate Division

CPLR § 212(a) “Under the law that existed at the time…”

CPLR § 212 Actions to be commenced within ten years
(a) Possession necessary to recover real property

Asher v Borenstein, 2010 NY Slip Op 06611 (App. Div., 2nd 2010)

In July 2008, Real Property Actions and Proceedings Law §§ 501, 522, and 543 were amended. The amendments applied solely to those actions commenced after July 7, 2008. Since the plaintiff commenced this action prior to July 7, 2008, those amendments are not applicable to this action.

Under the law as it existed at the time that the plaintiff filed her lawsuit, where a claim of adverse possession was not based upon a written document, the plaintiff had to demonstrate that she "usually cultivated, improved, or substantially enclosed the land" (Walsh v Ellis, 64 AD3d 702, 703; see former RPAPL former 522). Moreover, the plaintiff had to establish that her possession of the disputed parcel was "(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period" (Walling v Przybylo, 7 NY3d 228, 232; see Walsh v Ellis, 64 AD3d 702). We agree with the Supreme Court that the plaintiff satisfied these requirements.

Here, the defendants admitted that the fence between the two properties encroached approximately three feet onto their property and stood in the same location from the time they purchased their property in 1996 until the plaintiff brought suit, and that they were aware that the fence was not on the true property line when they took possession of their property. Nevertheless, from 1996 through 2008, the defendants took no action to eject the plaintiff. Accordingly, the defendants have conceded, through their admissions and their actions, that the plaintiff continually possessed the property for the 10-year statutory period (see Walling v Przybylo, 7 NY3d at 232; CPLR 212[a]).

The law as it existed at the time that the plaintiff filed her lawsuit made it clear that even "actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor" (Walling v Przybylo, 7 NY3d at 230; see Merget v Westbury Props., LLC, 65 AD3d 1102, 1105). Instead, "[c]onduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors" (Walling v Przybylo, 7 NY3d at 232-233; see Hall v Sinclaire, 35 AD3d 660, 663). Accordingly, the question of whether the plaintiff was aware that her fence encroached upon the defendants' property is immaterial to her proof of the element of hostility in this matter.

For actions commenced prior to July 7, 2008, "[t]he type of cultivation or improvement sufficient to satisfy the statute will vary with the character, condition, location and potential uses for the property" (Birnbaum v Brody, 156 AD2d 408, 408; see former RPAPL 522[1]). Here, the plaintiff's cultivation and improvement of the disputed parcel, consisting of maintaining the grass, planting shrubs, and installing a walkway, was consistent with the use to which a " thrifty owner[]'" would put comparable property (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 160, quoting Ramapo Mfg. Co. v Mapes, 216 NY 362, 373; see former RPAPL 522[1]; Birnbaum v Brody, 156 AD2d at 408-409; see also 2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1394-1395; but see Giannone v Trotwood Corp., 266 AD2d 430, 431). In addition, the presence of the fence for the statutory period constituted a substantial enclosure of the disputed parcel (see former RPAPL 522[2]; Morris v DeSantis, 178 AD2d 515, 516; Birnbaum v Brody, 156 AD2d at 409).

Since the record demonstrates by clear and convincing evidence, under the law existing at the time this action was commenced, that the plaintiff cultivated or improved the subject parcel, enclosed it with a fence, and satisfied the elements of adverse possession, and the defendants "acquiesce[d] . . . in the exercise of an obvious adverse or hostile ownership through the statutory period" (Walling v Przybylo, 7 NY3d at 232 [internal quotation marks omitted]), the Supreme Court properly determined that the plaintiff acquired title to the disputed parcel via adverse possession.

The bold is mine.

CPLR § 3101 (facebook/myspace)

CPLR 3101 Scope of disclosure

Lentz v Nic's Gym Inc., 2010 NY Slip Op 06620 (App. Div., 2nd 2010)

CPLR 3101(a) is to be construed liberally so that there should be disclosure of any material that is even arguably relevant (see Shanahan v Bambino, 271 AD2d 519). However, "unlimited disclosure is not required, and supervision of disclosure is generally left to the trial court's broad discretion" (Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460, 461 [internal quotation marks omitted]; see Silcox v City of New York, 233 AD2d 494). The essential test is one based on "usefulness and reason" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [internal quotation marks omitted]). Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to direct the defendant to allow the plaintiff to inspect the gym mats which allegedly caused her to fall and sustain injuries, and in denying the defendant's cross motion for a protective order.

And here is a recent decision on interweb discovery. Look for many more in the future.

Romano v Steelcase Inc., 2010 NY Slip Op 06620 (Supreme Court, Suffolk County 2010)

The present application was brought on by Order to Show Cause. The Court has reviewed the submissions both in favor of and in opposition to the relief sought, as well as the applicable federal statutory law, specifically the Stored [*2]Communications Act, 18 U.S.C. ¶ 2701 et seq., which prohibits an entity, such as Facebook and MySpace from disclosing such information without the consent of the owner of the account (see, 18 U.S.C. ¶ 2702(b)(3); Flagg v City of Detroit, 252 FRD 352 [ED Mich 2008]).

You can read more over at NFP.

Farked

Cheour v Pete & Sals Harborview Transp., Inc., 2010 NY Slip Op 06614 (App. Div., 2nd 2010)

Contrary to the Supreme Court's determination, the defendants failed to demonstrate, prima facie, 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 their motion, the defendants relied on, inter alia, the affirmed medical report of Dr. S. Farkas. In his report, Dr. Farkas, an orthopedist, noted during lumbar testing that the plaintiff had a "jog" of flexion and lateral bending, but he failed to compare those findings to what is normal (see Spanos v Harrison, 67 AD3d 893; Gibson-Wallace v Dalessandro, 58 AD3d 679). Furthermore, Dr. Farkas noted during his examination of the plaintiff that she had significant limitations in cervical spine, left knee, and left shoulder range of motion (see Mondevil v Kumar, 74 AD3d 1295; Smith v Hartman, 73 AD3d 736; Quiceno v Mendoza, 72 AD3d 669; Giacomaro v Wilson, 58 AD3d 802; McGregor v Avellaneda, 50 AD3d 749; Wright v AAA Constr. Servs., Inc., 49 AD3d 531). While Dr. Farkas stated that the plaintiff presented with "extreme exaggeration of symptoms" and that the decreased ranges of motion noted by him were "not true pathologic findings" and were instead exaggerated subjective complaints, he failed to explain or substantiate those conclusions with any objective medical evidence (see Reitz v Seagate Trucking, Inc., 71 AD3d 975; Bengaly v Singh, 68 AD3d 1030; Ortiz v S & A Taxi Corp., 68 AD3d 734).

The defendants also relied on the affirmed medical report of Dr. Sarasavani Jayaram, a neurologist, which also set forth significant limitations in the plaintiff's lumbar spine range of motion when the plaintiff was examined (see Mondevil v Kumar, 74 AD3d at 1295; Smith v [*2]Hartman, 73 AD3d at 736; Quiceno v Mendoza, 72 AD3d at 669; Giacomaro v Wilson, 58 AD3d at 802).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's 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).

The bold is mine. For a discussion of this decision head over to JT's blog.

“CPLR 3216 ‘is extremely forgiving of litigation delay'”

CPLR R. 3216 Want of prosecution

Umeze v Fidelis Care N.Y., 2010 NY Slip Op 06603 (App. Div., 1st 2010)

"When served with a 90-day demand pursuant to CPLR 3216, it is incumbent upon a plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate the notice or extend the 90-day period" (Primiano v Ginsberg, 55 AD3d 709, 709 [2008]; see Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006], lv denied 8 NY3d 805 [2007]). Here, having done neither, to avoid dismissal, this pro se plaintiff was required to show both a "justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216[e]). Furthermore, CPLR 3216 "is extremely forgiving of litigation delay" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]), and "[t]he nature and degree of the penalty to be imposed on a motion to dismiss for want of prosecution is a matter of discretion with the court" (Espinoza v 373-381 Park Ave. S., LLC, 68 AD3d 532, 533 [2009]).

Based on the foregoing principles and under the circumstances presented, the motion court did not abuse its discretion in granting the motion to dismiss conditioned on plaintiff resuming prosecution of the action within 10 days of service of the order with notice of entry. Plaintiff's attempts to obtain counsel twice during this litigation indicate that there was no intent to abandon the action (see e.g. Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633-634 [2003]). This includes that, in response to the 90-day notice, plaintiff contacted an attorney who, in a September 15, 2008 letter, stated that his firm was considering substituting for the "pro se plaintiff" and requested an additional 30 days to decide whether to take the case. Thus, plaintiff clearly met with an attorney in an attempt to resume this litigation. There is also evidence in the record that counsel for the defense refused to call back plaintiff's initial counsel. Contrary to defendants' contention, the "complaint, verified by plaintiff on the basis of personal knowledge and which detailed [the defendants'] acts of negligence, was a sufficient affidavit of merits" (Salch v Paratore, 60 NY2d 851, 852-53 [1983]).

All concur except Gonzalez, P.J. and Catterson, J. who dissent in a [*2]memorandum by Catterson, J. as follows:

CATTERSON, J. (dissenting)

I must respectfully dissent because in my opinion, the motion court improvidently exercised its discretion by allowing the plaintiff additional time after he failed to file a note of issue in response to the defendants' 90-day demand, and failed to proffer a justifiable excuse for not so doing. Specifically, I disagree with the majority's reliance on the Court of Appeals' observation in Baczkowski v. Collins Constr. Co. (89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 850, 678 N.E.2d 460, 462 (1997)) that CPLR 3216 is "extremely forgiving of litigation delay." The Court's observation is made upon the recitation of precisely those statutory requirements – filing the note of issue or tendering a justifiable excuse for not so doing — with which the plaintiff in this case failed to comply.

Make sure to click on the case to read the remainder of the dissent. The bold is mine.

CPLR § 511(b) Sufficiency of affidavit can’t be weighed, but contents may be considered.

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

HVT, Inc. v Safeco Ins. Co. of Am., 2010 NY Slip Op 06571 (App. Div., 2nd 2010)

On this appeal, we must determine whether an affidavit served by a plaintiff in accordance with CPLR 511(b) may be scrutinized to ensure that it does, in fact, "show[ ] either that the county specified by the defendant is not proper or that the county designated by him is proper," or if the mere service of such an affidavit, irrespective of its content, satisfies the plaintiff's burden. We hold that, while the sufficiency of the factual averments set forth in such affidavits may not be weighed, the contents of the affidavits may nonetheless be considered to confirm that the averments therein do indeed "show[ ] either that the county specified by the defendant is not proper or that the county designated by [the plaintiff] is proper" as required by the statute (CPLR 511[b]).

It's a long decision, but it's worth reading. I'll add more later.

A Class Denied

CPLR § 901 Prerequisites to a class action

Corsello v Verizon N.Y., Inc., 2010 NY Slip Op 06563 (App. Div., 2nd 2010)

Contrary to the plaintiffs' contentions, the Supreme Court properly denied their motion, inter alia, for class action certification. The Supreme Court properly found that the proposed class definition was overbroad (see Klein v Robert's Am. Gourmet Food, Inc., 28 AD3d 63, 71). Furthermore, the plaintiffs failed to establish that questions of law or fact common to the class predominate over any questions affecting only individual members (see CPLR 901[a][2]; Morrissey v Nextel Partners, Inc., 72 AD3d 209; Solomon v Bell Atl. Corp., 9 AD3d 49, 53; Hazelhurst v Brita Prods. Co., 295 AD2d 240, 241-242; Small v Lorillard Tobacco Co., 252 AD2d 1, 9, affd 94 NY2d 43; Mitchell v Barrios-Paoli, 253 AD2d 281, 291), and that their claims or defenses were typical of those of the class (see CPLR 901[a][3]; Dimich v Med-Pro, Inc., 34 AD3d 329, 330; Ross v Amrep Corp., 57 AD2d 99, 102-103).

The NYLJ has something special for you.

My week started off with the littlest child breaking my glasses into two. As you can see, I fixed it with a mix of crazy glue and sewing thread. Now when I wear them I look like Sloth and it makes my vision all crazy like. And today, while I was walking home I walked past an electronics store with a Pickachu statute on the outside and I swear, it looked like it was flipping me the bird. I blame that on my lack of sleep. What I can't explain is that for second, I was genuinely pissed at Pickachu.¹

And onto the law. Yesterday's Law Journal had one of those special fancy pants pull out sections: Court of Appeals and Appellate Practice. One of the sections, indeed, the most important section is, Civil Practice: Substantive Impact of the CPLR. Sure, there are other sections, but you didn't come here for them. You can here to see if I would actually fight a statue of a cartoon character and read about the CPLR.

The section covers, among other things CPLR CPLR § 205(a), CPLR § 5511, CPLR § 5304, CPLR § 901(a).

The discussion of CPLR 205(a) revolved around Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511 (Ct. App., 2009), a case I posted way back when. Next is CPLR 5511. The author, Thomas F. Gleason, starts with Batavia Turf Farms v. County of Genesee, 91 NY 2d 906 (Ct. App. 1998), a remarkably terse decision. From there he moves to Adams v Genie Indus., Inc., 14 NY3d 535 (Ct. App. 2010), a case I didn't post. Adams, Mr. Gleason writes, rejected the "more restrictive premise of Batavia, viz., "a stipulation on one issue (such as damages) would foreclose an appeal on other unrelated issues, because a party who had consented to an order could not claim to be aggrieved by any part of it within the meaning of CPLR 5511."²

In his discussion of class actions, namely CPLR 901(a), he refers to City of New York v Maul, 14 NY3d 499 (Ct. App. 2010), another case I managed to miss.

There's more. But you have to go read it for yourself.

Norman A. Olch, blogger and appellate guru, provides a several book reviews, including Making Your Case, by Scalia and Garner. Everyone should read it. You shouldnt need him to tell you to, but, if it that's what it takes, then fine.

Harry Steinberg has a must read section on how not to completely screw up your appeal. Part of it involves preserving the issues for appeal. A decision came out today on just that issue: Arrieta v Shams Waterproofing, Inc., 2010 NY Slip Op 06508 (App. Div., 1st 2010).

I might add some more later.

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1. I'm recycling facebook updates today.

2. For more cases discussing what it means to be "aggrieved" click HERE. I think all of them are from the Appellate Division, Second Department. Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010) is the most recent and probably the most useful.

CPLR § 4106; § 4113(a); and a missing witness

CPLR § 4106 Alternate jurors
CPLR § 4113 Disagreement by jury
(a) Unanimous verdict not required. A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.

Cornell Univ. v Gordon, 2010 NY Slip Op 06394 (App. Div., 1st, 2010)

Inasmuch as defendant fully consented to -— indeed even proposed -— having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the 6 to 2 jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113(a) that a verdict must be rendered by not less than five- sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241, 241 [*2][2007]). We note, however, with respect to the merits, that while CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.

We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she
cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

You can find a more detailed analysis here.

W-9’s and Settlements: CPLR § 5003-a

CPLR § 5003-a. Prompt payment following settlement

Klee v Americas Best Bottling Co., Inc., 2010 NY Slip Op 06361 (App. Div., 2nd, 2010)

When the defendants failed to pay the sum due under the settlement agreement within 21 days of tender of the release and stipulation of discontinuance, the plaintiff sought to enter judgment against them in accordance with CPLR 5003-a. On August 11, 2009, a judgment was entered in favor of the plaintiff in the agreed-upon settlement amount, together with interest, costs, and disbursements. Shortly thereafter, the defendants moved, inter alia, to vacate the judgment, arguing that the Internal Revenue Code required the plaintiff's attorney to comply with their request [*2]for a completed Form W-9, and that the plaintiff had procured the judgment by misrepresenting that he had provided them with all necessary settlement documents. While the motion was pending, the plaintiff's attorney completed Form W-9, and the defendants paid the sum of $400,000 required by the settlement agreement. The plaintiff opposed vacatur of the judgment, contending that the defendants' failure to pay the settlement proceeds within 21 days after his tender of the release and stipulation of discontinuance entitled him to recover interest, costs, and disbursements pursuant to CPLR 5003-a. The plaintiff also noted that his attorney had provided the defendants with his taxpayer identification number in the cover letter accompanying the settlement documents, and argued that an attorney receiving "gross proceeds" had no obligation to certify his or her taxpayer identification number to the payor on Form W-9. The Supreme Court granted the defendants' motion, relying upon the decision of the Appellate Division, First Department, in Cely v O'Brien & Kreitzberg (45 AD3d 368) to conclude, in essence, that the plaintiff's attorney was required to provide the defendants with a completed Form W-9 as a condition precedent to payment of the settlement proceeds. We disagree.

CPLR 5003-a was enacted in 1992 to encourage prompt payment of settlements (see Cunha v Shapiro, 42 AD3d 95, 101; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5003-a: 121). To this end, the statute requires any settling defendant, subject to certain exceptions not applicable here (see CPLR 5003-a[b], [c], [d]), to pay all sums due to any settling plaintiff "within twenty-one days of tender, by the settling plaintiff to the settling defendant[s], of a duly executed release and a stipulation discontinuing [the] action executed on behalf of the settling plaintiff"(CPLR 5003-a[a]). Where, as here, the release and stipulation of discontinuance are tendered by mail, the 21-day period is measured from receipt of the documents (see Leipold v Arnot Ogden Med. Ctr., 46 AD3d 1299, 1300; Cunha v Shapiro, 42 AD3d at 101). If the settling defendant fails to pay the sum due under the settlement agreement within 21 days of tender of the required documents, the statute authorizes the plaintiff to enter, without further notice, a judgment in the amount of the settlement, which is to include interest, costs, and disbursements (see CPLR 5003-a[e]).

Here, the plaintiff fulfilled his obligations under CPLR 5003-a by tendering a duly executed release and stipulation of discontinuance to the defendants' attorney. Neither CPLR 5003-a, nor the parties' stipulation of settlement, imposed any additional requirement on the plaintiff or his attorney. Regardless of whether the defendants' request that the plaintiff's attorney complete Form W-9 certifying his tax identification number was reasonable, as they contend, there is no statutory authority for elevating the completion of this form to a condition precedent for payment of the sum due in settlement of a personal injury claim (see In re Emergency Beacon Corp., 52 B.R. 828, 830; cf. Liss v Brigham Park Coop. Apts. Sec. No. 3, 264 AD2d 717).

Although we are aware that the Appellate Division First Department, reached a contrary conclusion in Cely v O'Brien & Kreitzberg (45 AD3d 368), we do not find the rationale of that case persuasive. Compensation for personal injuries does not generally constitute gross income (see 26 USC § 104[a][2]), and the defendants made no showing that the portion of the personal injury settlement which the plaintiff's attorney may be entitled to retain as a legal fee is actually a "reportable payment" subject to the reporting requirements of the Internal Revenue Code (see 26 USC § 3406). Moreover, even assuming that the defendants' insurance carrier is mandated to report payment of the settlement proceeds to the plaintiff's attorney, the defendants have not demonstrated that the provision of Form W-9 is the sole means by which the carrier can comply with its reporting obligations. Under these circumstances, we decline to effectively amend the terms of the parties' stipulation of settlement by conditioning payment of the settlement proceeds upon completion of the form. Granting settling defendants the unilateral right to withhold payment in these circumstances would significantly undercut the statutory goal of CPLR 5003-a to ensure the prompt payment of settlement proceeds upon tender of the statutorily prescribed documents. Accordingly, the defendants' failure to timely pay the sum due under the settlement agreement entitled the plaintiff to enter judgment including interest, costs, and disbursements pursuant to CPLR 5003-a(e) (see Leipold v Arnot Ogden Med. Ctr., 46 AD3d 1299; Sealey v Jamaica Buses, Inc., 39 AD3d 526, 527; Hadier v Remington Place Assoc., 302 AD2d 428). [*3]

The defendants' contention that this appeal is barred by the doctrine of accord and satisfaction because the plaintiff cashed the settlement check while their motion to vacate the judgment was pending is without merit (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Pepe v Tannenbaum, 279 AD2d 620).

The bold is mine. Head over to New York Appellate Law Blog for the short version. 5003-a is oddly similar to the no-fault regs.

CPLR R. 3212(f)

CPLR R. 3212(f)

Anne Koplick Designs, Inc. v Lite, 2010 NY Slip Op 06356 (App. Div., 2nd, 2010)

Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability (see CPLR 3212[b]; Yiouti Rest. v Sotiriou, 151 AD2d 744, 745). In support of their motion, the plaintiffs submitted an expert affirmation of an attorney establishing that the defendant Justin N. Lite failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, among other things, advising the plaintiffs to default in a lawsuit commenced against them in California and advising them that a default judgment obtained in California would not be enforceable in New York, a clearly incorrect statement of the law (see Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511; Yiouti Rest. v Sotiriou, 151 AD2d at 745). The plaintiffs' submissions also established that, but for the defendants' malpractice, they would have succeeded in defending the underlying claim. In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). [*2]

Moreover, while determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615; see Williams v D & J School Bus, Inc., 69 AD3d 617, 619; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). The defendants failed to provide an evidentiary basis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d 619, 620).

Also interesting was the portion of about out-of-state default judgments. I checked the two sites that the Court cites to, but neither appear to say anything about out-of-state default judgments. Compare Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20130 (App. Term, 2nd, 11th and 13th, Jud. Dists., 2010), which cites to Zimmerman v Tower Ins. Co. of N.Y., 13 AD3d 137 (App. Div., 1st, 2004)