Appellate Division

An application that shouldn’t have been denied

Verdi v Ho, 2010 NY Slip Op 02548 (App. Div., 2nd, 2010)

A week prior to the scheduled trial date of this action, the plaintiffs discovered that their medical expert had elected not to testify at trial. Accordingly, the plaintiffs' attorney, in effect, made an application for a continuance in order to obtain a new expert. In response, the defendants' counsel made an application to dismiss the amended complaint. By order dated November 3, 2008, the Supreme Court denied the plaintiffs' application and granted the defendants' application, dismissing the amended complaint with prejudice. Upon reargument, by order dated June 11, 2009, the Supreme Court, inter alia, adhered to so much of its original determination as granted the defendants' application to dismiss the amended complaint. We reverse the order dated June 11, 2009, insofar as appealed from.

"Although an application for a continuance is addressed to the sound discretion of the trial [*2]court, it is an improvident exercise of discretion to deny a continuance where the application is properly made, is not made for the purpose of delay, the evidence is material, and the need for a continuance did not result from the failure to exercise due diligence" (Mura v Gordon, 252 AD2d 485, 485; see Notrica v North Hills Holding Co., LLC, 43 AD3d 1119, 1120; Romero v City of New York, 260 AD2d 461). Balancing the appropriate factors, the Supreme Court improvidently exercised its discretion in, in effect, denying the plaintiffs' application, in effect, for a continuance and in granting the defendants' application to dismiss the amended complaint.

The bold is mine.

CPLR R. 3404 and Judicial Notice

CPLR R. 3404 Dismissal of abandoned cases

Matter of Cento Props. Co. v Assessor, 2010 NY Slip Op 02556 (App. Div., 2nd, 2010)

In the interim, in or around September 1999, Cento filed a note of issue with respect to the original proceeding. Subsequently, on September 25, 2001, the original proceeding appeared on the trial calendar. On that date, pursuant to certain procedures that former Justice Leo F. McGinity had implemented years earlier in an attempt to reduce the backlog of tax certiorari proceedings on the trial calendar, the original proceeding was removed from the trial calendar so the County could obtain a preliminary appraisal, after which the parties could try to settle the matter. Thereafter, the subsequent related proceedings were marked "inactive pre-note." [*2]

Ultimately, on or about November 21, 2007, with the parties unable to reach a settlement, Cento moved to restore the original proceeding to the trial calendar and, in effect, to restore the subsequent related proceedings to active status. The County opposed restoration of both the original proceeding and the subsequent related proceedings. The Supreme Court denied the motion, after which Cento moved to reargue. Upon granting leave to reargue, the Supreme Court granted Cento's motion to restore, holding that (1) restoration of the original proceeding to the trial calendar is appropriate since Cento satisfied the four-prong test for restoring, to the trial calendar, a matter marked "off" the trial calendar pursuant to CPLR 3404 for more than one year, and (2) restoration of the subsequent related proceedings to active status is automatic because the County had failed to serve a 90-day notice pursuant to CPLR 3216. We affirm, but for different reasons.

A review of the information on the New York State Unified Court System E-Courts public website, of which we take judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20), reveals that, when the original proceeding appeared on the trial calendar in 2001, the court marked the case "settled before trial." Accordingly, the original proceeding was not marked "off" or stricken from the calendar pursuant to CPLR 3404 (see Long-Waithe v Kings Apparel Inc., 10 AD3d 413, 414; Baez v Kayantas, 298 AD2d 416; Basetti v Nour, 287 AD2d 126). For the reasons set forth in our determination on a companion appeal (see Matter of Transtechnology Corp. v AssessorAD3d [decided herewith]), the Supreme Court correctly recognized that it misapprehended the law relevant to the instant dispute and, thus, correctly granted that branch of the petitioner's motion which was for leave to reargue and thereupon granted those branches of Cento's motion which were to restore the original proceeding to the trial calendar and, in effect, to restore the subsequent related proceedings to active status.

And one older 3404 decision that I never got around to posting.

Kahgan v Alwi, 67 AD3d 742 (App. Div., 2nd, 2009)

The plaintiff filed her note of issue on January 6, 2005. On November 9, 2005 the case was marked off the trial calendar, at the plaintiff's request, after the defendants moved for summary judgment. Prior to the expiration of one year after the action was marked off the calendar, the plaintiff moved, in or about July 2006, to restore the action to the trial calendar. However, although the notice of motion indicated a return date, this motion never appeared on any court calendar. In January 2008 the plaintiff again moved for an order "restoring this matter to active status for determination on the merits." This motion was denied by the Supreme Court, and we reverse.

CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned (see Sanchez v Denkberg, 284 AD2d 446 [2001]). The court retains discretion to grant a motion to restore a case to the trial calendar after the one-year period has expired (see Ford v Empire Med. Group, 123 AD2d 820 [1986]). Here, it is undisputed that the plaintiff initially moved to restore the matter to the trial calendar within one year after it was marked off and that, for reasons which are not discernible on the record, the court never addressed that motion. Moreover, the record reveals that there was continued activity on the case just before the second motion to restore was made. Although the plaintiff could have more promptly moved a second time to restore the case to the calendar, under all of the circumstances, we conclude that there was a reasonable excuse for the delay in prosecution and a lack of intent to abandon the action (see Drucker v Progressive Enters., 172 AD2d 481 [1991]). Furthermore, the plaintiff has demonstrated a meritorious cause of action and a lack of prejudice to the defendant. Accordingly, the Supreme Court improvidently exercised its discretion in refusing to restore the matter to the trial calendar (see Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]; Acciarito v Homedco, Inc., 237 AD2d 236 [1997]).

One way out of a mortgage CPLR R. 3215(c)

JBR Constr. Corp. v Staples, 2010 NY Slip Op 02514 (App. Div., 2nd, 2010)

RPAPL 1501(4) provides that "[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired," any person with an estate or interest in the property may maintain an action "to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom" (RPAPL 1501[4]). Here, the plaintiff property owner made a prima facie showing of its entitlement to judgment as a matter of law declaring that the subject mortgage is invalid by establishing that a foreclosure action commenced by the defendant mortgagee in 2001 was dismissed by this Court as abandoned pursuant to CPLR 3215(c) (see Staples v Jeff Hunt Devs., Inc., 56 AD3d 459), and that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see CPLR 213[4]; LePore v Shaheen, 32 AD3d 1330, 1331; Corrado v Petrone, 139 AD2d 483; see also Plaia v Safonte, 45 AD3d 747; Zinker v Makler, 298 AD2d 516). In opposition, the defendant failed to raise a triable issue of fact as to whether the statute of limitations was tolled or revived (see Alvarez v Prospect Hosp., 68 NY2d 320; Rack v Rushefsky, 5 AD3d 753). Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment declaring that the subject mortgage is invalid and directing the County Clerk of Dutchess County [*2]to cancel it (see LePore v Shaheen, 32 AD3d 1330; Corrado v Petrone, 139 AD2d 483).

That branch of the plaintiff's motion which sought cancellation of the notice of pendency filed in connection with the dismissed foreclosure action was not addressed by the Supreme Court. Accordingly, that branch of the plaintiff's motion remains pending and undecided, and the issues raised with respect thereto are not properly before us (see Lend-Mor Mtge. Bankers Corp. v Nicholas, 69 AD3d 680; Fremont Inv. & Loan v Delsol, 65 AD3d 1013, 1015; Zellner v Tarnell, 65 AD3d 1335, 1337; Katz v Katz, 68 AD2d 536, 542-543).

The bold is mine.

CPLR § 202 “Borrowing statute”

CPLR § 202 Cause of action accruing without the state

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 2010 NY Slip Op 02489 (App. Div., 1st, 2010)

When a nonresident sues in New York's courts on a cause of action accruing outside the state, our "borrowing statute" (CPLR 202) requires that the cause of action be timely under the limitation periods of both New York and the jurisdiction where the claim arose (see Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]). Generally, a tort action accrues "at the time and in the place of the injury," and "[w]hen an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss" (id. at 529).

Applying these principles, it is clear that plaintiffs' legal malpractice claim accrued in California, where their residences and principal place of business were located and the alleged economic injury was sustained, at the latest, in March 2006. Under that state's applicable one-year statute of limitations (Cal Civ Proc Code § 340.6), this action, commenced in November 2007, was time-barred.

Note the difference in 202 where the plaintiff is a resident of New York.

Not Aggrieved (CPLR § 5511)

DKFT Pizza, Inc. v Riviera Plaza, LLC, 2010 NY Slip Op 02086 (App. Div., 2nd, 2010)

Only "[a]n aggrieved party or a person substituted for him may appeal from any appealable . . . order" (CPLR 5511). "A party is aggrieved by an order when it directly affects that party's individual rights" (Berrechid v Shahin, 60 AD3d 884, 884; see Carollo v Northern Westchester Hosp. Ctr., 5 AD3d 715). Since the Supreme Court's order, which preliminarily enjoined the defendants DCB Food Services Corp., d/b/a Sandella's Cafe, and Danielle DiBenedetto from selling certain food and beverage items at their cafÉ, did not affect the rights of the defendants Riviera Plaza, LLC, and Riviera Plaza Associates, the latter two are not aggrieved by the order, and the appeal must be dismissed (see generally Matter of Commercial Bank of Informatics & Computing Technique Dev. Bank Informtechnika v Ostashko, 274 AD2d 516; Law v Benedict, 197 AD2d 808; see also Won's Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 162).

The bold is mine.

Civil Contempt

Astrada v Archer, 2010 NY Slip Op 02078 (App. Div., 2nd, 2010)

Contrary to Felton's contention, the Supreme Court properly granted that branch of the plaintiff's motion which was to hold her in contempt of court based upon her failure to comply with the order dated February 14, 2007. In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged violated a clear and unequivocal court order, thereby prejudicing a right of another party to the litigation (see Judiciary Law § 753[A][3]; Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 686; Goldsmith v Goldsmith, 261 AD2d 576, 577). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party (see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d at 686; Yeshiva Tifferes Torah v Kesher Intl. Trading Corp., 246 AD2d 538).

This next one provides a comparison to the requirements for criminal contempt.

Town of Riverhead v T.S. Haulers, Inc., 68 AD3d 1103 (App. Div., 2nd, 2009)

To prevail on a motion to punish for civil contempt, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct (see Coyle v Coyle, 63 AD3d 657, 658 [2009]; Kalish v Lindsay, 47 AD3d 889 [2008]; Galanos v Galanos, 46 AD3d 507 [2007]; Biggio v Biggio, 41 AD3d 753 [2007]; Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 859 [2006]). To prevail on a motion to punish for criminal contempt, the movant must establish, beyond a reasonable doubt, the willful disobedience of a court's lawful mandate (see Judiciary Law § 750 [A] [3]; § 751; Muraca v Meyerowitz, 49 AD3d 697 [2008]; see also Matter of Rubackin v Rubackin, 62 AD3d 11, 19 [2009]). Here, the plaintiff did not meet its burden (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130 [2008]; Panza v Nelson, 54 AD2d 928 [1976]). Therefore, the hearing court properly denied the plaintiff's motion to hold the defendant in civil and/or criminal contempt.

The bold is mine.

Jurors: CPLR § 4106 (Alternates) and and CPLR § 4113 (Disagreements)

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.

(b) Procedure where jurors disagree. Where five-sixths of the jurors constituting a jury cannot agree after being kept together for as long as is deemed reasonable by the court, the court shall discharge the jury and direct a new trial before another jury.

This is the first time 4113 appears on this blog. We are going to throw a party. Huzzah.

Cornell Univ. v Gordon, 2010 NY Slip Op 02072 (App. Div., 1st, 2010)

Plaintiffs, who are defendant's landlord, originally sought attorneys' fees pursuant to a stipulation of settlement that provided for such fees in the event of defendant's noncompliance with the stipulation, and were awarded a money judgment. Inasmuch as $31,434.43 of the judgment on appeal was awarded to compensate plaintiffs for their attorneys' fees incurred in enforcing the money judgment, as opposed to enforcing the stipulation underlying the money judgment, that portion of the jury award amounted to a "fee on a fee" not expressly authorized by the stipulation or by statute, and is therefore not recoverable (see David Z. Inc. v Timur on Fifth Ave., 7 AD3d 257, 258 [2004]; Getty Petroleum Corp. v G.M. Triple S. Corp., 187 AD2d 483, 484 [1992]).

The fee award of $15,000, compensating plaintiffs' attorneys for their efforts to compel defendant's compliance with the term of the stipulation that required defendant, at her sole cost and expense, to remove the final remaining Department of Buildings violation issued against the building because of her unauthorized apartment renovation, was not excessive under the circumstances.

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 [2007]). We note, however, with respect to the merits, that while [*2]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]).

The bold is mine.

Pleading Defamation and Fraud. CPLR R. 3016(a)(b)

Moreira-Brown v City of New York, 2010 NY Slip Op 02063 (App. Div., 1st, 2010)

In this action for defamation and emotional distress, the verified complaint alleges that on or about September 12, 1998, defendant Police Detective Raymond Rivera, acting as agent for his codefendants, made written and verbal defamatory statements that plaintiff "had committed rape and sexual assault and was being sought by the police for arrest and prosecution [for] rape and sexual assault." These words were not demarcated as a quotation in the complaint. Dismissing the complaint, the motion court held that plaintiff had not complied with CPLR 3016(a) because the complaint "does not set forth the particular words alleged to be defamatory."

While a complaint alleging defamation must allege the particular spoken or published words on which the claim is based, the words need not be set in quotation marks (see John Langenbacher Co. v Tolksdorf, 199 AD2d 64 [1993]). When construed in the light most favorable to plaintiff, the complaint alleges that Detective Rivera specifically stated that plaintiff "had committed rape and sexual assault," and "was being sought by the police for arrest and [*2]prosecution" for those crimes. This allegation is sufficient to meet the requirements of CPLR 3016(a).

Colasacco v Robert E. Lawrence Real Estate, 68 AD3d 706 (App. Div., 2nd, 2009)

CPLR 3016 (b) provides, in relevant part, that "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake . . . the circumstances constituting the wrong shall be stated in detail." The specificity requirements are relaxed where it is alleged that the particular circumstances of the alleged fraud are peculiarly within the defendants' knowledge (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491-492 [2008]; Pericon v Ruck, 56 AD3d 635, 636 [2008]).

"The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Orlando v Kukielka, 40 AD3d 829, 831 [2007]; see Ross v DeLorenzo, 28 AD3d 631, 636 [2006]). Here, the complaint fails to allege the elements of fraud with sufficient specificity. In particular, the complaint fails to allege that DiCorato's alleged misrepresentations to the plaintiffs were known by the defendants to be false. Furthermore, it is clear from the face of the complaint that the plaintiffs' supposed reliance upon DiCorato's alleged misrepresentations concerning the location of the property's boundary lines was unreasonable as a matter of law (see Orlando v Kukielka, 40 AD3d at 831). There was no allegation in the complaint that the dimensions and boundary lines of the subject property were within the exclusive knowledge of the defendants. Indeed, the plaintiffs could easily have ascertained these facts through the use of ordinary means (see Esposito v Saxon Home Realty, 254 AD2d 451 [1998]; Bennett v Citicorp Mtge., Inc., 8 AD3d 1050 [2004]; Mosca v Kiner, 277 AD2d 937, 938 [2000]). Accordingly, the Supreme Court should have dismissed the fraud cause of action pursuant to CPLR 3211 (a) (7).

Similarly, the cause of action sounding, in effect, in negligent misrepresentation also fails to meet the specificity requirements of CPLR 3016 (b). Furthermore, in order to prevail on such a cause of action, a plaintiff must establish that the defendant had a duty to use reasonable care to impart correct information due to a special relationship between the parties, that the information was incorrect or false, and that the plaintiff reasonably relied upon the information (see Grammer v Turits, 271 AD2d 644, 645 [2000]). The complaint fails to allege that the defendants had a duty to the plaintiffs to impart correct information arising out of a special relationship between them. Moreover, as with the fraud cause of action, the complaint fails to allege circumstances under which the plaintiffs' reliance upon DiCorato's alleged misrepresentations could be considered reasonable or justifiable. Thus, the Supreme Court should also have dismissed the second cause of action pursuant to CPLR 3211 (a) (7).

The bold is mine.

A tricky case (CPLR R. 3216)

CPLR R. 3216
Want of prosecution

Cadichon v Facelle, 2010 NY Slip Op 02058 (App. Div., 1st, 2010)

It is well settled that to vacate the dismissal of an action dismissed pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-day demand to serve and file a note of issue and a meritorious cause of action (Walker v City of New York, 46 AD3d 278 [2007]). Plaintiffs failed to offer a reasonable excuse for their failure to file the note of issue. Indeed, while plaintiffs contended that defendants' noncompliance with their discovery obligations was to blame, and that such noncompliance was preventing them from filing a note of issue, "[they] had [their] remedies during the lengthy period of general delay (CPLR 3124, 3126)" (McDonald v Montefiore Med. Ctr., 60 AD3d 547, 547 [2009]).

While we do not disagree with the dissent's conclusion that some of the delay was occasioned by defendant, our decision rests on the record and controlling law which required plaintiffs to take action. Once served with a 90-day demand, plaintiffs were required to either seek an extension to comply with the 90-day notice, move to vacate the same (Brady v Benenson Capital Co., 2 AD3d 382, 382 [2003], lv denied 2 NY3d 702 [2004]) or file a note of issue [*2](CPLR 3216[b][3]). Plaintiffs did none of these things and their case was thus properly dismissed. Subsequent to dismissal, vacatur required a quantum of proof which plaintiffs utterly failed to satisfy with their first motion, and which they were unable to cure with the their second motion.

Plaintiffs also impermissibly addressed the merits of their action for the first time on reply (Migdol v City of New York, 291 AD2d 201, 201 [2002]; Lumbermens Mut. Cas. Co. v Morse Shoe Company, 218 AD2d 624, 625-626 [1995]; Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992].

The excuse of law office failure offered on the motion to reargue and renew did not constitute a reasonable excuse (Walker, 46 AD3d at 280-281). Further, plaintiffs failed to explain why they failed to present the excuse of law office failure on the original motion.

Remember the recent amendment to CPLR 205. Why doesn't it apply here? The dissent explains.

On the motion to renew, counsel explained that the conference resulting in the May 3, 2007 so-ordered stipulation was handled by an "of counsel" attorney, and thus, the December 27, 2007 deadline set by the court for the filing of the note of issue was not entered into the firm's calendar system as would ordinarily be done. Counsel further stated that had he known about the deadline, he would have moved for an extension of time to file the note of issue and/or to strike defendants' answers based on defendants' failure to comply with discovery. I would hold that this failure to calendar the date was, under the circumstances, excusable law office failure (see Kaufman v Bauer, 36 AD3d 481 [2007] [deadline missed due to personnel change at law firm]; Werner v Tiffany & Co., 291 AD2d 305 [2002] [counsel misplaced calendar and in reconstructing commitments forgot deadline]), particularly given defendants' delays and plaintiffs' inability, as a direct result thereof, to certify that discovery was complete. While this case was decided before the effective date of the amendment to CPLR 205, which provides that an action may not be dismissed under CPLR 3216 unless the judge sets forth "on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation," it is not without significance that plaintiffs did not engage in a pattern of neglect.

While I agree with the motion court that the better practice would have
been for plaintiffs to have made a motion to compel discovery or for an
extension of time to file the note of issue, the failure to take these
steps should not result in dismissal of a meritorious cause of action.
It is [*4]the long established public
policy of this State to decide cases on their merits (see Kaufman v
Bauer, 36 AD3d at 483).

The bold is mine.

Can’t meet prima facie burden by adding new evidence in reply. And CPLR R. 2106

Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 2010 NY Slip Op 01930 (App. Div., 2nd, 2010)

Clove Lakes' failure to make a prima facie showing required the denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Clove Lakes' prima facie burden cannot be met by evidence submitted for the first time in its reply papers (see David v Bryon, 56 AD3d 413; Barrera v MTA Long Is. Bus, 52 AD3d 446).

And you can't submit an affirmation that does not actually affirm.

Niazov v Corlean Cab Corp., 2010 NY Slip Op 01941 (App. Div., 2nd, 2010)

The defendants failed to meet their prima facie burden 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied upon, inter alia, the report of an orthopedic surgeon who examined the plaintiff. The report was without any probative value since he failed to affirm the contents of his report under the penalties of perjury, as required by CPLR 2106 (see Magro v He Yin Huang, 8 AD3d 245; Slavin v Associates Leasing, 273 AD2d 372; Baron v Murray, 268 AD2d 495; Cwiekala v Siddon, 267 AD2d 193). Without the report, the defendants could not meet their burden on the motion.

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d 524; Coscia v 938 Trading Corp., 283 AD2d 538).

In both of these cases the motions were denied without needing to look at the opposition papers. Bad papers get motions denied, even if the opposition papers are horrible. Even if there are no opposition papers. The movant still has it's burden.

Finally, parties can't affirm, no matter how hard they swear under penalties of perjury.