Appellate Division

Substitution of Experts: CPLR § 3101(d)

CPLR § 3101(d) Trial Preparation

Maddaloni Jewelers, Inc. v Rolex Watch U.S.A., Inc., 2010 NY Slip Op 04454 (App. Div., 1st, 2010)

The motion court exercised its discretion in a provident manner in
denying defendant's motion for preclusion. Although defendant may have
incurred expenses in preparing a rebuttal to plaintiff's initial
expert's report, there was no indication that plaintiff's substitution
of its expert was willful or prejudicial to defendant (see Gallo v
Linkow, 255 AD2d 113, 117 [1998]). The record demonstrates that the
case had been already been delayed due to defense counsel's surgery and
was again delayed because of a change of Justices assigned to the case.
Plaintiff's service of its substitution of experts was neither done on
the eve of trial nor at the last-minute, as no trial date was set at the
time the substituted expert was hired (see e.g. Mateo v 83 Post Ave. Assoc., 12 AD3d 205,
205-206 [2004]). Furthermore, even assuming that plaintiff was required
to show "good cause" (CPLR 3101[d][1][i]), its proffered reason for the
substitution of experts, namely, the breakdown in its relationship with
its former expert, sufficiently established such "good cause" (compare Lissak v Cerabona, 10 AD3d 308,
309-310 [2004]).

The motion court providently exercised its discretion in refusing
to award legal fees and costs attributable to the substitution of the
expert. "An award of attorneys' fees as a direct remedy must be based on
contract or statute" or where there is established wrongdoing (City
of New York v Zuckerman, et al., 234 AD2d 160 [1st Dept 1996], app
dismissed 90 NY2d 845 [1997]). While a party may be ordered to bear
the cost of his or her adversary's rebuttal expert where a party fails
to disclose the substance of the expert's testimony in accordance with
CPLR 3101 and where the matter is on for trial (see St. Hilaire v
White, 305 AD2d 209 [2003]), here, plaintiff's notice of
substitution of its expert was offered months before the action was
scheduled [*2]for trial, and there is no
showing that plaintiff acted improperly in attempting to substitute
experts.

The bold is mine.

Renewal proper to correct “procedural oversight” CPLR R. 2221

CPLR R. 2221
(e)
Motion for Leave to Renew

Zhijian Yang v Alston, 2010 NY Slip Op 04236 (App. Div., 1st, 2010)

The burden then shifted to plaintiff. Initially, we find that in the
absence of any prejudice to defendants, renewal was properly granted to
plaintiff to correct a procedural oversight on the previous motion and
allow the submission of her examining physician's report in admissible
form (see Cespedes v McNamee, 308 AD2d 409 [2003]). However, upon
renewal, Supreme Court should have adhered to its original
determination granting defendants' motion for summary judgment because
plaintiff failed to raise a triable issue of material fact as to whether
she sustained a serious injury in this accident.

Strange. Generally, a motion to renew requires an explanation for failing to provide the evidence in the first place. The Court cites to Cespedes:

The IAS court originally granted defendants' motion for summary judgment because the physician's report that plaintiff submitted in opposition was neither sworn nor affirmed pursuant to CPLR 2106. Immediately after learning of the court's decision, plaintiff moved to renew and reargue, submitting his doctor's findings in affidavit form, and explaining, through his attorney and doctor, that neither realized the report was unsworn until after receiving the IAS court's order. The IAS court properly granted plaintiff's motion, which, contrary to its designation, was one to renew, not reargue, since it was based on newly submitted evidence (see Telep v Republic El. Corp., 267 AD2d 57 [1999]). Renewal may be granted where the failure to submit a doctor's report in affidavit form “'was inadvertent, and … absen[t] … any showing by defendants of prejudice attributable to the short delay caused by such failure”' (Ramos v Dekhtyar, 301 AD2d 428, 429 [2003]; see also Segall v Heyer, 161 AD2d 471 [1990]). Defendants show no prejudice. On the merits, an issue of fact as to whether plaintiff sustained a serious injury is raised by his doctor's affidavit correlating significant quantified range of motion limitations in plaintiff's lower back, among other conditions, including lumbar muscle spasms, to a herniated disc revealed in an MRI taken shortly after the accident, and opining that the disability to plaintiff's back is permanent (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 352-353 [2002]; Gonzalez v Vasquez, 301 AD2d 438 [2003]; Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]).

CPLR R. 3212; 4518 Gaps in proof not enough. Records not admissible. Plus CPLR 3116(a): Deposition not signed

CPLR R. 3212 Motion for summary judgment

CPLR R. 4518 Business records

CPLR R. 3116 Signing deposition; physical preparation; copies

(a) Signing.

Shafi v Motta, 2010 NY Slip Op 03895 (App. Div., 2nd, 2010)

On their motion for summary judgment, the defendants had the burden of
establishing, by proof in admissible form, their prima facie entitlement
to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v
City of New York, 49 NY2d 557, 561; Myers v Ferrara, 56 AD3d
78, 83). This burden may be satisfied only by the defendant's
affirmative demonstration of the merit of the defense, rather than
merely by reliance on gaps in the plaintiffs' case (see DeFalco v
BJ's Wholesale Club, Inc., 38 AD3d 824, 825; Cox v Huntington
Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd.
Liab. Co., 27 AD3d 539; Mondello v DiStefano, 16 AD3d 637,
638). Here, the defendants submitted [*2]hospital
laboratory reports and records of the New York City Department of
Health and Mental Hygiene. As the Supreme Court concluded, however,
because these documents were neither certified nor authenticated, and
thus were not in admissible form, they could not be considered on the
motion (see CPLR 4518[c]; Banfield v New York City Tr. Auth.,
36 AD3d 732; Baez v Sugrue, 300 AD2d 519, 520; cf. Whitfield v
City of New York, 48 AD3d 798, 799). Moreover, the affirmation of
the defendants' attorney submitted with very brief excerpts of
deposition testimony was insufficient to establish the defendants'
entitlement to judgment as a matter of law (see Irving v Great Atl.
& Pac. Tea Co., 269 AD2d 358, 359; Cicolello v Limb, 216
AD2d 434). Inasmuch as the defendants failed to carry their burden,
denial of the motion was required without regard to the sufficiency of
the papers submitted in opposition (see Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853; Molina v Belasquez, 1 AD3d 489).

Marmer
v IF USA Express, Inc., 2010 NY Slip Op 04151 (App. Div., 2nd, 2010)

The defendants did not meet their prima facie burden of showing that the
plaintiff did not sustain a serious injury as a result of the subject
accident. Specifically, the defendants failed to show that the plaintiff
did not sustain a medically-determined injury or impairment of a
nonpermanent nature which prevented her from performing substantially
all of the material acts which constituted her usual and customary daily
activities for a period of not less than 90 days during the 180-day
period immediately following the subject motor vehicle accident, as
articulated in Insurance Law § 5102(d) (hereinafter the 90/180-day
category) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy
v Eyler, 79 NY2d 955, 956-957). In the plaintiff's bill of
particulars, she clearly set forth that, as a result of the subject
motor vehicle accident, she sustained, inter alia, a serious injury
under the 90/180-day category of Insurance Law § 5102(d). The affirmed
reports of the defendants' examining physicians did not specifically
relate any of their findings to this 90/180-day category of serious
injury (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65
AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58
AD3d 815; Scinto v Hoyte, 57 AD3d 646). Further, the unsigned
deposition transcript of the plaintiff, which the defendants submitted
in support of their motion, did not constitute admissible evidence in
light of the defendants' failure to demonstrate that the transcript was
forwarded to the plaintiff for her review pursuant to CPLR 3116(a) (see
Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald
v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos
v Intown Assoc., 17 AD3d 564). Since the defendants [*2]failed to meet their prima facie burden, we
need not consider whether the plaintiff's opposition papers were
sufficient to raise a triable issue of fact (see Negassi v Royle, 65
AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk,
60 AD3d 650; Miller v Bah, 58 AD3d 815).

The bold is mine.

CPLR 3101(a)(4) Non-Party disclosure. App. Div., 2nd. Non-party subpoena quashed.

On May 7th I posted a case where the Appellate Division, Second Department found that a parties non-party subpoenas were proper. Today, in an unusually long decision, the same court came to a different conclusion. It's a long decision. Read it anyway.

Kooper v Kooper, 2010 NY Slip Op 04147 (App. Div., 2nd, 2010)

On this appeal we consider principles governing the discovery of
documents from nonparties pursuant to CPLR 3101(a)(4), which provides
that the party seeking disclosure must give notice stating "the
circumstances or reasons such disclosure is sought or required" from the
nonparty. Specifically, the question arises whether a party must
establish the existence of "special circumstances" warranting discovery
from a nonparty in order to successfully oppose a motion to quash a
subpoena duces tecum served on that nonparty. Many of our cases
continued to apply that standard after CPLR 3101(a)(4) was amended to
remove the requirement that discovery from a nonparty be obtained only
"where the court on motion determines that there are adequate special
circumstances." We hereby disapprove the further application of the
"special circumstances" standard in this context. We, nevertheless, look
behind that language in our cases and find underlying considerations
which are appropriate and relevant to the trial court's exercise of its
discretion in determining whether a request for discovery from a
nonparty should go forward or be quashed. Here, the Supreme Court
providently exercised its discretion in granting the plaintiff's motion
to quash the subpoenas at issue.

The bold is mine.

Confession of Judgment CPLR § 3218(a)(2)

CPLR § 3218 Judgment by
confession
(a) Affidavit of defendant
(2) if the judgment to be confessed is for money due or to become due, stating concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due

Cole-Hatchard v Nicholson, 2010 NY Slip Op 04131 (App. Div., 2nd, 2010)

Contrary to the plaintiffs' contention, the Receiver had standing to
seek vacatur of the judgment by confession on the ground that the
affidavit of confession of judgment does not [*2]comply
with CPLR 3218(a)(2) (see County Nat'l Bank v Vogt, 28 AD2d 793,
794, affd 21 NY2d 800; In re Horowitz, 98 NYS2d 881, 882,
affd 277 App Div 1130; 7-3218 New York Civil Practice: CPLR P
3218.00; see generally Eberhard v Marcu, 530 F3d 122, 133; Scholes
v Lehmann, 56 F3d 750, 755, cert denied sub nom. African
Enterprise, Inc. v Scholes, 516 US 1028; SEC v Shiv, 379 F
Supp 2d 609; cf. Burtner v Burtner, 144 AD2d 417, 418; Magalhaes
v Magalhaes, 254 App Div 880, 881), and the Receiver was not
required to commence a plenary action to the extent he sought to vacate
the judgment by confession on that ground (see County Natl. Bank v
Vogt, 28 AD2d 793, affd 21 NY2d 800; Mall Commercial Corp.
v Chrisa Rest., 85 Misc 2d 613, 614; cf. Engster v Passonno, 202
AD2d 769, 769; Affenita v Long Indus., 133 AD2d 727, 728; Bufkor,
Inc. v Wasson & Fried, 33 AD2d 636, 637).

Also contrary to the plaintiffs' contention, the affidavit of
confession of judgment, which failed, inter alia, to set forth any facts
explaining why Nicholson was indebted to the plaintiffs with respect to
the money they invested with him, or why such debt was justly due, does
not comply with CPLR 3218(a)(2) (see Franco v Zeltser, 111 AD2d
367, 368; County Nat'l Bank v Vogt, 28 AD2d at 793; Wood v
Mitchell, 117 NY 439, 441; cf. Harrison v Gibbons, 71 NY 58,
60; Perkins Davis Group, Inc. v Chelsea 82973, LLC, 24
AD3d 645, 645; Eurofactors Intl., Inc. v Jacobowitz, 21 AD3d 443,
445; ILMS Realty Assn. v Madden, 174 AD2d 603, 603; Princeton
Bank & Trust Co. v Berley, 57 AD2d 348, 352-354). In that
regard, given that the affidavit of confession of judgment does not
simply contain some minor error of fact, but rather, is wholly
insufficient under CPLR 3218(a)(2), the Supreme Court providently
exercised its discretion in declining to amend the judgment by
confession as an alternative to granting the Receiver's motion to vacate
it (see Baehre v Rochester Dental Prosthetics, 112 Misc 2d 270,
276; cf. Princeton Bank & Trust Co. v Berley, 57 AD2d at
354).

The bold is mine.

No CPLR § 3101(d) notice required for plaintiff’s treating physician

CPLR § 3101(d) Trial Preparation (2) Materials

Soriano v Inoa, 2010 NY Slip Op 03843 (App. Div., 1st, 2010)

It is unclear from the trial record whether Dr. Gutstein was an expert
witness as to whom CPLR 3101(d) notice was required, or plaintiff's
treating physician, as to whom no notice was required (see e.g. Breen
v Laric Entertainment Corp., 1 AD3d 298, 299-300 [2003]). Moreover,
it is clear that the prejudice to defendants arose from the lack of
proper authorizations for medical records and not from the report
annexed to plaintiff's expert notice.

Accordingly, Gutstein's testimony as to causation should not have
been precluded on the ground of plaintiff's late service of the notice.

For more information, a lot more information, on this case, head over to Hochfelder's New York Injury Cases Blog.

Best Evidence Rule

Clarke v Rodriguez, 2010 NY Slip Op 03861 (App. Div., 2nd, 2010)

The plaintiff submitted secondary evidence of the contents of the
original contract of sale in this case, which sufficiently explained
"the unavailability of the primary evidence" (Schozer v William Penn
Life Ins. Co. of N.Y., 84 NY2d 639, 644; see Lipschitz v Stein, 10 AD3d 634, 637). The
plaintiff established, by a preponderance of the evidence, that the
defendant's former attorney, who did not testify at the trial, was in
possession of the original contract of sale (see Glatter v Borten, 233
AD2d 166, 168; Dependable Lists v Malek, 98 AD2d 679, 680;
Prince, Richardson on Evidence §§ 10-209, 10-210 [Farrell 11th ed]).

Attorney Witness Rule

Falk v Gallo, 2010 NY Slip Op 03864 (App. Div., 2nd, 2010)

The disqualification of an attorney is a matter that rests within the
sound discretion of the Supreme Court (see Nationscredit Fin. Servs. Corp. v Turcios, 41
AD3d 802). A party's entitlement to be represented by counsel of
his or her choice is a valued right which should not be abridged absent a
clear showing that disqualification is warranted (see Aryeh v Aryeh, 14 AD3d 634). Thus, the
party seeking to disqualify an attorney bears the burden on the motion (see
S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d
437; Nationscredit Fin. Servs. Corp. v Turcios, 41
AD3d 802).

The advocate-witness rules contained in the Code of Professional
Responsibility, which have been superseded by the Rules of Professional
Conduct, provide guidance, but are not binding authority, for the courts
in determining whether a party's attorney should be disqualified during
litigation (see S & S Hotel Ventures Ltd. Partnership v 777 S.H.
Corp., 69 NY2d 437). Rule 3.7 of the Rules of Professional Conduct
provides that unless certain exceptions apply, "[a] lawyer shall not act
as an advocate before a tribunal in a matter in which the lawyer is
likely to be a witness on a significant issue of fact" (Rules of
Professional Conduct [22 NYCRR 1200.0] rule 3.7). Here, since the
plaintiffs' attorney was the only person, other than the parties, who
had knowledge of any discussions regarding the terms of the oral
agreement underlying this litigation, he is "likely to be [*2]a witness on a significant issue of fact"
(Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Matter
of Stober v Gaba & Stoba, P.C., 259 AD2d 554). Accordingly, the
Supreme Court properly granted the defendants' motion to disqualify the
plaintiffs' attorney (see Matter of Stober v Gaba & Stober, 259
AD2d 554; Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7).

Sum Certain. CPLR § 3215(a)(b)

CPLR § 3215 Default Judgment
(a) Default and Entry
(b) Procedure before court

Fidelity Natl. Tit. Ins. Co. v Valtech Research, Inc., 2010 NY Slip Op 03865 (App. Div., 2nd, 2010)

The Supreme Court erred in excusing the defendant's default in
appearing and answering, and in allowing it to serve an answer. The
defendant failed to sustain its burden of demonstrating that it had not
received the summons and complaint in time to defend itself so as to
entitle it to vacatur of its default under CPLR 317 (see Guayara v
First Rockaway Coast Corp., 35 AD3d 659; cf. Taieb v Hilton
Hotels Corp., 60 NY2d 725; Brockington v Brookfield Dev. Corp., 308
AD2d 498). The defendant also failed to establish a reasonable excuse
for that default. Thus, it was not entitled to vacatur under CPLR 5015 (see
Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taylor
v Saal, 4 AD3d 467; Dominguez v Carioscia, 1 AD3d 396; Kaplinsky
v Mazor, 307 AD2d 916).

However, because the plaintiff is not seeking to recover a "sum
certain" within the meaning of CPLR 3215(a), its claim that the Clerk
had the authority to enter the judgment in its favor is without merit (see
Congregation Chaim Barucha v Friedman, 62 AD3d 933; Ayres Mem.
Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty
of Animals, 17 AD3d 904, 905; Geer, Du Bois & Co. v Scott
& Sons Co., 25 AD2d 423, 423-424; see also Reynolds Sec. [*2]v Underwriters Bank & Trust Co., 44
NY2d 568, 572). Accordingly, the matter must be remitted to the Supreme
Court, Nassau County for an inquest and the entry thereafter of an
appropriate judgment (see CPLR 3215[b]).

CPLR 3101(a)(4) Non-Party disclosure

CPLR § 3101 Scope of disclosure

(a)
Generally.
There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by:

(4) any other person, upon notice
stating the circumstances or reasons such disclosure is sought or
required.

Kondratick v Orthodox Church in Am., 2010 NY Slip Op 03877 (App. Div., 2nd, 2010)

Although the general rule is that there shall be "full disclosure of all
matter material and necessary in the prosecution . . . of an action"
(CPLR 3101[a]; see Auerbach v Klein, 30 AD3d 451), nevertheless,
"unlimited disclosure is not permitted" (Silcox v City of New York, 233
AD2d 494). A party seeking disclosure from a nonparty witness, in
addition to demonstrating that the disclosure sought is material and
necessary, must also set forth circumstances or reasons why disclosure
is sought or required from a nonparty (see CPLR 3101[a][4]; Tenore
v Tenore, 45 AD3d 571, 571-572). Here, the Orthodox Church in
America (hereinafter the appellant) satisfied this requirement. In light
of the claims made by the plaintiff in Action No. 1, the information
sought in the subpoenas by the appellant is relevant, material, and [*2]necessary, and unavailable through other
means. Accordingly, the Supreme Court should have denied the motion to
quash the subpoenas (see Tenore v Tenore, 45 AD3d at 571-572; Thorson
v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper,
Inc., 249 AD2d 374).