Appellate Division

Experts

Simpson v Edghill, 169 AD3d 737 [2d Dept. 2019]

In opposition, the affidavit of the plaintiff’s expert failed to raise a triable issue of fact as to the causation element. “ ’While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable’ ” (Behar v Coren, 21 AD3d 1045, 1046-1047 [2005], quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [2004]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Behar v Coren, 21 AD3d at 1047; see Galluccio v Grossman, 161 AD3d 1049, 1052 [2018]). Here, the plaintiff’s expert, who was board certified in ophthalmology, was qualified to, and did, raise a triable issue of fact as to whether Edghill deviated from the accepted standard of care in failing to refer the plaintiff to a neurologist to further evaluate his symptoms. However, the affidavit was insufficient to establish that the plaintiff’s meningioma could have been treated by radiation instead of surgery if it had been detected in November 2014. The plaintiff’s expert failed to articulate that he had any training in the treatment of meningiomas or what, if anything, he did to familiarize himself with the applicable standard of care. The affidavit, therefore, lacked probative value and failed to raise a triable issue of fact as to whether any departure from the accepted standard of care proximately caused the plaintiff’s injuries (see Feuer v Ng, 136 AD3d 704, 707 [2016]; Tsimbler v Fell, 123 AD3d 1009, 1010 [2014]).

Noble v Kingsbrook Jewish Med. Ctr., 168 AD3d 1077 [2d Dept. 2019] (same as Simpson v Edghill, 169 AD3d 737 [2d Dept. 2019]

Sanchez v L.R.S. Cab Corp., 169 AD3d 733 [2d Dept. 2019]

In opposition, the appellant failed to raise a triable issue of fact. The affirmed report of the appellant’s neurologist was insufficient to raise a triable issue of fact, as it failed to expressly compare the appellant’s range of motion to a normal range of motion, and it failed to provide any qualitative assessment of the appellant’s condition (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Fiorillo v Arriaza, 52 AD3d 465, 466-467 [2008]; Kaminski v Kawamoto, 49 AD3d 501, 502 [2008]).

Cho v Demelo, 2019 NY Slip Op 06467 [2d Dept. 2019]

The Supreme Court should not have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The defendants failed to meet their prima facie burden on the motion (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmed report of their orthopedic surgeon failed to identify the objective tests that were utilized to measure the plaintiff’s ranges of motion, and thus, did not support the conclusion that the plaintiff suffered no limitations as a result of the accident (see Zavala v Zizzo, 172 AD3d 793, 794; Bayk v Martini, 142 AD3d 484; Durand v Urick, 131 AD3d 920; Exilus v Nicholas, 26 AD3d 457). It is therefore unnecessary to determine whether the papers submitted by the plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Vacatur

CVM Partners 1, LLC v Adams, 173 AD3d 971 [2d Dept. 2019]

No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; HSBC Bank USA, N.A. v Gervais, 168 AD3d 692, 693 [2019]; HSBC Bank USA, N.A. v Simms, 163 AD3d 930, 932 [2018]; Adotey v British Airways, PLC, 145 AD3d 748, 749 [2016]). Although “an appeal from such a judgment brings up for review those matters which were the subject of contest before the Supreme Court” (Geffner v Mercy Med. Ctr., 167 AD3d 571, 572 [2018] [internal quotation marks omitted]; see Bottini v Bottini, 164 AD3d 556, 558 [2018]; Alam v Alam, 123 AD3d 1066, 1067 [2014]), the defendant here defaulted at every stage of the proceedings, beginning with his failure to appear or answer the complaint, continuing with his failure to appear on the return dates of his two motions, brought on by orders to show cause, one of which sought to vacate his default in failing to appear at a scheduled court conference, and ending with his failure to oppose the motions that led to the amended judgment of foreclosure and sale appealed from. Accordingly, since there were no “matters which were the subject of contest before the Supreme Court” (Geffner v Mercy Med. Ctr., 167 AD3d at 572 [internal quotation marks omitted]), the appeal must be dismissed in its entirety.

Equity Inv. & Mtge. Co. v Smith, 173 AD3d 690 [2d Dept. 2019]

Although courts have discretionary power to relieve a party from a judgment or order “for sufficient reason and in the interest[ ] of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see Katz v Marra, 74 AD3d 888, 890 [2010]), “[a] court’s inherent power to exercise control over its judgment[ ] is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” (Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [1984] [internal quotation marks omitted]; see HSBC Bank USA v Josephs-Byrd, 148 AD3d 788, 790 [2017]). Here, the arguments advanced by the City in support of its motion did not constitute grounds for relief, either under CPLR 5015 (a) or pursuant to the Supreme Court’s inherent discretionary power to vacate the judgment for sufficient reason and in the interest of substantial justice (see Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d at 742; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790; Alexander v New York City Tr. Auth., 35 AD3d 772 [2006]).

Diamond v Leone, 173 AD3d 686 [2d Dept. 2019]

The Supreme Court improvidently exercised its discretion in finding that the plaintiff did not demonstrate a reasonable excuse for her failure to appear on November 28, 2017. In an affirmation in support of the motion, the plaintiff’s attorney submitted a detailed and credible explanation of the law office failure which caused the default in appearing. The plaintiff’s attorney affirmed that an entry in the “Comments” field for the subject appearance date on the “eLaw” website had created confusion as to whether the scheduled appearance had been adjourned from November 28 to November 30, and that the attorney’s law office had repeatedly attempted to contact the Part Clerk on November 27 and November 28 for clarification and had left a voicemail message. The attorney affirmed that when his law office finally communicated directly with the Part Clerk at approximately 11:30 a.m. on November 28, his law office was advised that the case had been dismissed due to the plaintiff’s failure to appear. The attorney’s affirmation was supported by, among other things, printouts from the “eLaw” website. Therefore, the plaintiff provided a reasonable excuse for failing to appear (see 555 Prospect Assoc., LLC v Greenwich Design & Dev. Group Corp., 154 AD3d 909 [2017]; Hobbins v North Star Orthopedics, PLLC, 148 AD3d 784 [2017]; Polsky v Simon, 145 AD3d 693 [2016]). The plaintiff also demonstrated a potentially meritorious cause of action (see 555 Prospect Assoc., LLC v Greenwich Design & Dev. Group Corp., 154 AD3d at 910). Accordingly, the court should have granted the plaintiff’s motion to vacate the “order on default” dated November 28, 2017, and to restore the action to the trial calendar.

Bank of N.Y. Mellon v Ruci, 168 AD3d 799 [2d Dept. 2019]

The appellant’s vague and unsubstantiated claim of law office failure by an unidentified attorney was insufficient to establish a reasonable excuse for her default (see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 707 [2017]; U.S. Bank N.A. v Barr, 139 AD3d 937, 938 [2016]; M & T Bank v Morris, 138 AD3d 939 [2016]). Since the appellant failed to establish a reasonable excuse for her default, it is not necessary to determine whether she demonstrated a potentially meritorious defense to the action (see LaSalle Bank, N.A. v LoRusso, 155 AD3d at 706; Bank of N.Y. Mellon v Colucci, 138 AD3d 1047, 1048 [2016]; M & T Bank v Morris, 138 AD3d at 940).

EMC Mtge. Corp. v Walker, 2019 NY Slip Op 06474 [2d Dept. 2019]

Here, when the plaintiff moved, in effect, to vacate the May 2013 order and to restore the action to the calendar, it failed to proffer a reasonable excuse for its default in appearing at the scheduled court conference, and merely alleged that “there was no missed appearance, and as such 22 NYCRR 202.27 does not apply.” Moreover, the plaintiff failed to articulate any basis for the more than 2½-year delay in moving to vacate the order of dismissal (see id. at 1252; Wright v City of Poughkeepsie, 136 AD3d 809). In light of the lack of a reasonable excuse, it is unnecessary to determine whether the plaintiff demonstrated the existence of a potentially meritorious cause of action (see Wright v City of Poughkeepsie, 136 AD3d at 809; Selechnik v Law Off. of Howard R. Birnbach, 120 AD3d 1220). Thus, we disagree with the Supreme Court’s decision to hold a traverse hearing on June 22, 2016, and its subsequent determination granting the plaintiff’s motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the May 2013 order and to restore the action to the calendar, and that branch of the plaintiff’s separate motion which was to extend the time to serve Walker in the interest of justice.

LaSalle Bank, N.A. v Delice, 2019 NY Slip Op 06485 [2d Dept. 2019]

Most importantly, the plaintiff did not provide any explanation as to why it delayed more than five years before filing its motion to vacate, apart from the vague assertion that it hired new counsel because, at some point, the law firm that represented the plaintiff at the time of the January 2011 order subsequently closed. The plaintiff’s contention that the delay was justified because its subsequent counsel expended extensive efforts to comply with Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts is raised for the first time on appeal and not properly before us (cf. U.S. Bank N.A. v Ahmed, 137 AD3d 1106, 1108-1109). The plaintiff’s lengthy delay in moving to vacate, failure to adequately explain the delay, and failure to pursue other available avenues of relief support the court’s determination not to exercise its discretion to vacate the dismissal order in the interests of substantial justice (seeHSBC Bank USA v Josephs-Byrd, 148 AD3d at 790; cf. U.S. Bank N.A. v Ahmed, 137 AD3d at 1108-1109).

CPLR 5513(a)

W. Rogowski Farm, LLC v County of Orange, 2019 NY Slip Op 01815 [2d Dept. 2019]

[W]e hold that service of the order or judgment with written notice of entry by any party upon the other parties to the action operates to commence the 30-day time to appeal with respect to not only the serving party, but all the parties in the action.
***
[T]he language of CPLR 5513(a) as to who serves notice of entry is not limited to the “prevailing party,” or to “the appealing party,” or to “the party seeking to limit an adversary’s appellate time.” Rather, “a” party, which is unrestricted, necessarily refers to “any” party to an action. As a result, the service of an order or judgment with written notice of entry commences the 30-day time to appeal as to not only the party performing the service, but as to all other parties as well.
***
The plaintiffs argue that the County’s motion to dismiss the complaint insofar as asserted against it is untimely, as the motion was not filed until after the parties’ briefs had been fully submitted, and that the issue is otherwise waived.
The County’s motion to dismiss is nevertheless entertained and granted on its merits. As previously noted, the time period for filing a notice of appeal is jurisdictional in nature and non-waivable.

“Manifest disregard of the law”

Matter of Reljic v Tullett Prebon Fin. Servs., LLC, 2019 NY Slip Op 01182 [1st Dept. 2019]

In holding petitioners jointly and severally liable for compensatory damages, plus attorneys’ fees and costs, the arbitrators did not act in manifest disregard of the law (see Matter of Brown & Williamson Tobacco Corp. v Chesley, 7 AD3d 368, 372 [1st Dept 2004]; Duferco Intl. Steel Trading v T. Klaveness Shipping A/S, 333 F3d 383, 385 [2d Cir 2003] [“to vacate an arbitral award on the grounds of manifest disregard of the law … we must be persuaded that the arbitrators understood but chose to disregard a clearly defined law or legal principle”]).

Discovery

O’Halloran v Metropolitan Transp. Auth., 2019 NY Slip Op 01318 [1st Dept. 2019]

The court providently exercised its discretion in granting in part plaintiff’s motion to compel discovery and ordering defendants to run searches of electronic mailboxes of defendants’ employees and to produce those documents responsive to plaintiffs’ requests (CPLR 3101[a]; 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 [1st Dept 2009]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]; GoSMILE, Inc. v Levine, 112 AD3d 469 [1st Dept 2013]). The record demonstrates that plaintiff’s requests seek material and necessary information, and that her search terms, all of which were to be combined with her name or nickname or the name or nickname of a coworker she alleges was discriminated or retaliated against on similar grounds, would result in the disclosure of relevant evidence, and are reasonably calculated to lead to the discovery of relevant information.
Plaintiff’s second Supplemental Request for Production of Documents, dated November 30, 2017, seeking all complaints, discrimination-related or not, involving defendant George Menduina’s conduct from 2010 to present, sought information material and necessary to this particular lawsuit because such information was relevant not only to whether Menduina, plaintiff’s supervisor, discriminated against plaintiff, but also to whether Menduina was more qualified than plaintiff to hold the very position that plaintiff alleges she was denied for discriminatory reasons.

Fowler v Buffa, 2019 NY Slip Op 01306 [1st Dept. 2019]

The trial court did not err in precluding a disability insurance form alleged to contain a statement against interest from defendant Anurag Shrivastava, M.D. The imposition of sanctions for discovery misfeasance is a matter better left to the sound discretion of the trial court (see Gomez v New York City Hous. Auth., 217 AD2d 110, 114 [1st Dept 1995]). CPLR 3101 provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, including a party’s own statements (see also Sands v News Am. Publ., 161 AD2d 30, 42 [1st Dept 1990]). Plaintiff’s disclosure of the document less than two days prior to trial was an unfair surprise for which no reasonable excuse was proffered (see Curbean v Kibel, 12 AD3d 206, 207 [1st Dept 2004]; Ward v Mehar, 264 AD2d 515, 516 [2d Dept 1999]).

credibility determined as a matter law

Carthen v Sherman, 2019 NY Slip Op 00954 [1st Dept. 2019]

Although we agree with the dissent that as a general premise “the contradictions in the testimony of the respective parties raise issues of credibility for the trier of fact to resolve,” there are rare instances where credibility is properly determined as a matter of law (see e.g. Finley v Erie & Niagara Ins Assn., 162 AD3d at 1654-1646; Loughin v City of New York, 186 AD2d 176, 177 [2d Dept 1992]). This Court is not “required to shut its eyes to the patent falsity of a [claim]” (MRI Broadway Rental v United States Min. Prods. Co., 242 AD2d 440, 443 [1st Dept 1997], affd 92 NY2d 421 [1998]).

Cannot establish prima facie case in reply

GMP Fur Trade Fin., LLC v Brenner, 2019 NY Slip Op 00858 [2d Dept. 2019]

Additionally, the plaintiff could not sustain its prima facie burden by relying on unauthenticated bank records submitted through an attorney affirmation for the first time with its reply papers (see Poole v MCPJF, Inc., 127 AD3d 949, 949-950; DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900; Daguerre, S.A.R.L. v Rabizadeh, 112 AD3d 876, 879; Damas v Valdes, 84 AD3d 87, 96).

Subpoenas — abuse of Discretion not to adjourn for appearance

Matter of Global Liberty Ins. Co. v Perez, 2019 NY Slip Op 00548 [1st Dept. 2019]

“It is an abuse of discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Balogh v H.R.B. Caterers, 88 AD2d 136, 141 [2d Dept 1982]). Here, there is no evidence that petitioner Global Liberty was dilatory in issuing subpoenas to the officer who responded to the scene or to respondent Nestor Ruben Perez, neither of whom appeared at the framed issue hearing. Nor is there any evidence that petitioner was in any way responsible for these witnesses’ failure to appear. The issue about which they would testify, i.e., whether the vehicle involved in the accident, which fled the scene, was a 2003 Subaru or a 2005 Chevrolet, is central to the issue of whether that vehicle was stolen or was driven by Flores’s ex-husband who reported it stolen. Moreover, while Flores and GEICO claim prejudice on the ground that Flores’s ex-husband has left the country, Global Liberty has made it clear that it would consent to having him testify by electronic means (cf. Yu Hui Chen v Chen Li Zhi, 109 AD3d 815 [2d Dept 2013]), a concession not addressed by Flores and GEICO or the court below.

Failure to object

Matter of Miller v City of New York, 2019 NY Slip Op 00558 [1st Dept. 2019]

Petitioner’s failure to object to the admission of a 2013 stipulation of settlement of a prior investigation waives the issue of admissibility (see Community Counseling & Mediation Servs. v Chera, 115 AD3d 589, 590 [1st Dept 2014]), and in any event, there is no evidence that the arbitrator was influenced by the stipulation in the guilt determination.

Thompson-Shepard v Lido Hall Condominiums, 2019 NY Slip Op 00576 [1st Dept. 2019]

Defendants waived their objection to the admissibility of plaintiff’s expert’s unsworn report by failing to raise it before the motion court (see Shinn v Catanzaro, 1 AD3d 195, 198 [1st Dept 2003]). However, in any event, the report does not raise a triable issue of fact (see Kane, 4 AD3d at 190; Mandel v 370 Lexington Ave., LLC, 32 AD3d 302 [1st Dept 2006]; Silva v 81st St. and Ave. A Corp., 169 AD2d 402, 404 [1st Dept 1991], lv denied 77 NY2d 810 [1991]). Plaintiff attempts to link the expert’s opinion that the staircase contained irregular and excessive riser heights with her testimony that upon arriving at the scene of the accident she saw the decedent’s leg lodged in a riser. However, her after-the-fact observation does not show that the decedent fell because of the purportedly defective riser. Moreover, insofar as the decedent’s hearsay statements cited in the expert’s report can be considered, the decedent did not say that he slipped for reasons related to the risers.

3216 and mailing / personal knowledge

Bank of Am. v Guillaume, 2019 NY Slip Op 00845 [2d Dept. 2019]

“CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals” (Baczkowski v Collins Constr. Co., 89 NY2d 499, 502). Pursuant to CPLR 3216, a court may dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff “to resume prosecution of the action and to serve and file a note of issue within [90] days after receipt of [the] demand,” and also stating that the failure to comply with the demand will serve as a basis for a motion to dismiss the action.
Notably, the time within which the plaintiff must act runs from the receipt, and not the service of the demand (see Vasquez v City of New York, 5 AD3d 672; Kun Tiam Seow v Yu Dan Li, 1 AD3d 570, 571; 176-60 Union Turnpike v Klinger, 284 AD2d 380). Once the 90-day demand is received, “the plaintiff [is] required to comply with it by filing a note of issue or move before the default date to vacate the demand or extend the 90-day period” (Kushmakova v Meadow Park Rehabilitation & Health Care Ctr., LLC, 56 AD3d 434, 436; see CPLR 3216[c],[e]).
“Generally, proof that an item was properly mailed gives rise to a rebuttable [*2]presumption that the item was received by the addressee'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547, quoting Matter of Rodriguez v Wing, 251 AD2d 335, 336). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680).
Contrary to the defendant’s contention, she failed to establish that the 90-day demand was sent by certified mail and received by the plaintiff or anyone acting on its behalf. In his affirmation in support of the defendant’s motion, the defendant’s counsel asserted that on July 28, 2017, his office sent a 90-day demand to plaintiff’s counsel by certified mail. However, the defendant’s counsel does not state that he had personal knowledge of the mailing of the 90-day demand or describe his office’s standard practices of mailing litigation papers to opposing counsel. Additionally, even though the certified mail receipt bears a postmark date of July 28, 2017, there was no evidence that the 90-day demand was mailed under that certified mail receipt number (see Mid City Constr. Co., Inc. v Sirius Am. Ins. Co., 70 AD3d 789, 790; New York & Presbyt. Hosp. Allstate Ins. Co., 29 AD3d at 547-548). Therefore, the defendant’s submissions were insufficient to raise a presumption that the plaintiff received the 90-day demand. Accordingly, we agree with the Supreme Court’s denial of the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against her for failure to prosecute.