Category: CPLR § 3126

3043. 3126: pot meet kettle

CPLR R. 3043 Bill of particulars in personal injury actions

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Anderson v Ariel Servs., Inc., 2012 NY Slip Op 02038 (1st Dept., 2012)

The motion court did not improvidently exercise its discretion in denying defendants' motions to the extent that they sought dismissal and/or preclusion (see CPLR 3126; see also Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Preclusion is not warranted since the record reflects that defendants themselves did not comply timely with the first preclusion order (see e.g. DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [2011]). Moreover, plaintiff proffered a reasonable excuse for the delay, including defendants' consent thereto, and the verified complaint, which alleged that plaintiff was injured when she was struck by defendants' vehicle while crossing the street in a crosswalk, with the right of way, evidenced the existence of a meritorious claim (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

Plaintiff's third verified bill of particulars, which, inter alia, alleges that she had a third surgery, to remove hardware from her left tibia, the insertion of which hardware had been disclosed in an earlier bill of particulars, was a supplemental bill of particulars which concerned the "continuing consequences" of her previously identified injury, and thus, did not require prior leave of the court (Shahid v New York City Health & Hosps. Corp., 47 AD3d 798, 800 [*2][2008]; see CPLR 3043[b]). Since discovery relating to the third surgery had not previously been ordered, the court's direction of related disclosure, rather than sanctions, was appropriate.

Discovery

Denver Employees Retirement Plan v JPMorgan Chase Bank, N.A., 2012 NY Slip Op 00639 (1st Dept., 2012)

The motion court providently exercised its discretion by refusing to compel plaintiff to respond to an untimely document request for "All Documents Concerning investments by or for the benefit of [plaintiff], direct or indirect, in securities issued by Lehman" (see Kingsgate Assoc. v Advest, Inc., 208 AD2d 356, 357 [1994]). The circumstances presented herein do not warrant exercise of our own independent discretion to reverse this order.

Likewise, we find no reason to disturb the exercise of the court's "broad discretion" in denying defendant's deposition notice (see Brooklyn Union Gas Co. v American Home Assurance Co., 23 AD3d 190, 190 [2007]). This notice called for the production of "a person designated by [plaintiff] regarding any and all investments in securities issued or guaranteed by Lehman . . . that were purchased, held, and/or sold by or for the benefit of [plaintiff] from January 1, 2007 to September 30, 2008, excluding investments made through the JPMorgan Securities Lending Program," i.e., the program at issue in this litigation. Defendant essentially attempted to obtain the same material that the court previously found to be untimely and irrelevant. Plaintiff's litigation concerns investments with defendant in Lehman medium term notes (MTNs). Defendant seeks information about plaintiff's investments in other Lehman securities that plaintiff made at different times and that are unrelated to the MTNs. The court correctly determined that investment decisions concerning other, unrelated investments [*2]purchased for different accounts that have different investment goals, are not relevant to the account in question (cf. Matter of Clark, 257 NY 132, 135 [1931]).

VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 2012 NY Slip Op 00658 (1st Dept., 2012)

This case requires us to determine the scope of a party's duties in the electronic discovery context, and the appropriate sanction for failure to preserve electronically stored information (ESI). We hold that in deciding these questions, the motion court properly invoked the standard for preservation set forth in Zubulake v UBS Warburg LLC (220 FRD 212 [SD NY 2003]; Pension Comm. of the Univ. of Montreal Pension Plan v Banc of Am. Sec., LLC., 685 F Supp 2d 456, 473 [SD NY 2010]), which has been widely adopted by federal and state courts. In Zubulake, the federal district court stated, "Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold' to ensure the preservation of relevant documents" (Zubulake, 220 FRD at 218). The Zubulake standard is harmonious with New York precedent in the traditional discovery context, and provides li tigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered.

W & W Glass Sys., Inc. v Admiral Ins. Co., 2012 NY Slip Op 00307 (1st Dept., 2012)

Defendants' argument that further discovery is warranted and that the motion is therefore premature, is unavailing. Defendants participated in lengthy discovery in the underlying action. Admiral had all of the relevant policies of insurance and had ample opportunity to gather evidence.

No proof was offered demonstrating that wrap-up coverage may have been in effect, and Admiral's bare affirmation raising speculative defenses is insufficient to defeat a prima facie showing of entitlement to summary judgment (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]). Defendants cannot avoid summary judgment based on speculation that further discovery may uncover something.

 

spoliation

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Ortiz v Bajwa Dev. Corp., 2011 NY Slip Op 08571 (2nd Dept., 2011)

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126 " (Holland v W.M. Realty Mgt., Inc., 64 AD3d 627, 629; see Baglio v St. John's Queens Hosp., 303 AD2d 341, 342). The court may, under appropriate circumstances, impose a sanction "even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation" (DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53; see Iannucci v Rose, 8 AD3d 437, 438; Baglio v St. John's Queens Hosp., 303 AD2d at 342).

The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for the spoliation of evidence (see Iannucci v Rose, 8 AD3d at 438; Allstate Ins. Co. v Kearns, 309 AD2d 776; Puccia v Farley, 261 AD2d 83, 85). "We should substitute our judgment for that of the Supreme Court only if its discretion was exercised improvidently" (Holland v W.M. Realty Mgt., Inc., 64 AD3d at 629).

The President of the defendant Imtiaz Donut Corp. (hereinafter the defendant) discarded the defendant's business records after he had notice of the plaintiff's lawsuit against the owner of the premises where the accident occurred and when it should have been obvious that the plaintiff would also assert a claim against the defendant, a tenant of the subject premises (see Erdely  v Access Direct Sys., Inc., 45 AD3d 724, 726-727). However, both the plaintiff and the defendant are equally affected by the loss of the records of the names and addresses of the defendant's employees who were at work on the day of the accident, and neither has reaped an unfair advantage in the litigation (see De Los Santos v Polanco, 21 AD3d 397, 398; Lawson v Aspen Ford, Inc., 15 AD3d 628, 629-630; Ifraimov v Phoenix Indus. Gas, 4 AD3d 332, 334). Accordingly, under the circumstances, the court should have granted the plaintiff's motion pursuant to CPLR 3126, but only to the extent of precluding the defendant from offering any testimony at trial from its employees whose names and addresses were lost.

 

Discovery, electronic and otherwise

CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal

CPLR § 1024 Unknown parties

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Henderson-Jones v City of New York, 2011 NY Slip Op 06327 (1st Dept., 2011)

By order entered on June 1, 2010, the court stated, "Upon the foregoing papers, it is ordered that this motion to strike defendant's answer is denied."

 

"[I]t is well settled that the drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith" (McGilvery v New York City Tr. Auth., 213 AD2d 322, 324 [1995]). Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses (see Johnson v City of New York, 188 AD2d 302 [1992]; Nunez v City of New York, 37 AD3d 434 [2007]). A party that permits discovery to "trickl[e] in . . [with a] cavalier attitude . . should not escape adverse consequence" (Figdor v City of New York, 33 AD3d 560, 561 [2006]).

 

As drastic as the penalty of striking an answer is, it serves the important function of deterring obstreporous litigation behavior. Indeed, the Court of Appeals recently made the following observation:

"As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that if the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010] [internal quotation marks, alteration, and citations omitted]).

 

 

Defendants' behavior in this matter clearly implicates the values articulated in Gibbs. Plaintiff was required to serve three discovery notices on defendants to determine the identities of the officers who executed the warrant, and to this day defendants have not complied. The information sought is simple and straightforward, and, most importantly, easily discoverable. The discovery demands were made in addition to a FOIL request and the furnishing of an authorization designed to lessen defendants' burden in searching for the appropriate names. Moreover, defendants were ordered by the court, on no fewer than three occasions, to produce documents containing the officers' names or to reveal the names outright. To the extent defendants made any effort to divulge the names of the officers who executed the search warrant, they made the effort only because plaintiff pressed the issue. It is not unreasonable to deduce from this record that had plaintiff not sought enforcement of unequivocal court orders requiring the production of the officers' names, defendants, to this day, would not have provided even the scant information that they eventually provided. Moreover, defendants failed to demonstrate that they even attempted to comply with their discovery obligations. An affidavit regarding the unavailability of documents that are the subject of a discovery order must document a thorough search conducted in good faith. It should include details such as "where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, [and] whether a search [was] conducted in every location where the records were likely to be found" (Jackson v City of New York, 185 AD2d 768, 770 [1992]).

 

Here, the affidavits submitted by defendants reveal that the efforts that defendants maintain they took to ascertain the names of the officers were so unimaginative and lacking in diligence that it is hard to characterize them as anything other than willfully designed to thwart plaintiff. Searching old desks and lockers is woefully insufficient. As demonstrated by the unchallenged affidavit by plaintiff's expert, the Police Department is a sophisticated bureaucracy with a system for collecting and storing information concerning arrests and prisoner processing that is not limited to the furniture and notebooks assigned to the officers involved. Indeed, defendants did not even attempt to explain why it would have been futile to search the areas and databases suggested by plaintiff's expert. They addressed the expert's opinion only to the extent of impugning his qualifications.

 

Defendants' argument that plaintiff's request for the documents containing the names of all 50 of the Gang Squad officers was overbroad reveals a disdain for the numerous court orders issued in this case. From the early stages of the litigation, defendants were directed, in absolute terms, to disclose the names of the officers involved in the execution of the warrant on plaintiff's apartment. Thus, the format of plaintiff's initial requests for the information is irrelevant. Defendants could have appealed from the orders, but they did not. That they continue to argue, even now, that plaintiff asked for the documents in an imprecise manner confirms their outright disdain for the court's authority to supervise discovery.

 

As to the substitution of Sergeant Van Orden, plaintiff demonstrated that she made a diligent inquiry to identify the names of the officers involved before commencing this action (see CPLR 1024; Goldberg v Boatmax://, Inc., 41 AD3d 255 [2007]). She served the unidentified officers by an alternative means of service authorized by the court pursuant to CPLR 308(5) (see Harkness v Doe, 261 AD2d 846 [1999]). Thus, she should have been permitted to substitute Van Orden as a defendant. We reject defendants' position that plaintiff waited too long to move to substitute Van Orden; the substitution was "deemed" effective when plaintiff learned of Van Orden's identity (CPLR § 1024; see Woodburn Ct. Assoc. I v Wingate Mgt. Co., 243 AD2d 1043,  1045 [1997]).

Elias v City of New York, 2011 NY Slip Op 06330 (1st Dept., 2011)

In a June 9, 2010 order, the court directed the City "to respond to [plaintiff's] discovery notice dated 1/15/10 for the location of west side of Riverside Dr at Tiemann PL north to St Clair and south to W 122nd." On or about July 12, 2010, the City responded to the court's June 9, 2010 order. An appended DOT form letter dated July 6, 2010 again advised that a search regarding "Riverside Drive and Tiemann Place, Manhattan" "produced no records" for the two years prior to and including the day of the accident.

In August 2010, plaintiff again moved for an order striking the City's answer on the ground that the City had willfully failed to comply with numerous discovery orders. In opposition, the City, emphasizing the drastic nature of the relief sought, argued that its conduct was not "willful and contumacious" and that when such a showing has not been made, an appropriate sanction for dilatory conduct is to permit a defaulting party "one final opportunity to comply." Further, the City contended that, in its submissions dated July 12, 2010 and May 11, 2010, it had fully complied with the court's June 9, 2010 order and adequately responded to plaintiff's January 15, 2010 supplemental discovery notice.

In an order dated October 13, 2010, the court denied nine of plaintiff's demands, three of them on the ground that "City represents documents have been produced." But the court ordered the City to produce, within thirty days, "written complaints, and/or prior written notices, repair orders, [and] cut forms, for the sidewalk on the west side of Riverside Drive, at its intersection with Tiemann Place, for 2 years prior to the date of accident" and to provide an "affidavit if no documents exist" within 45 days. Finally, the court stated that "[f]ailure to comply with this order will result in the striking of the City's answer (emphasis in original)."

In sum, although over three years had passed since plaintiff had first sought this discovery which is central to the prosecution of his action, and despite the nine court orders directing defendant to comply with outstanding discovery, the motion court acceded to defendant's request  to be given one more opportunity to provide the discovery. Defendant has offered no excuse for its failure to produce the documents. Apparently, the imposition by this Court of a significant sanction was not sufficient to deter defendant from continuing its cavalier noncompliance with court-ordered discovery. In our view, the history of defendant's untimely, unresponsive and lax approach to complying with the court's previous orders warrants the striking of defendant's answer (see Byam v City of New York, 68 AD3d 798 [2009]).

Wright v Mount Vernon Hosp., 2011 NY Slip Op 07417 (2nd Dept., 2011)

As a sanction against a party who "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed," a court may issue an order, inter alia, "prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony," or "striking out pleadings" (CPLR 3126[2], [3]). Here, the plaintiff's willful and contumacious conduct can be inferred from the plaintiff's repeated failure to comply with orders directing that her deposition be commenced or completed by a date certain, the plaintiff's adjournments of her deposition, and the inadequate excuses offered to explain her noncompliance (see Commisso v Orshan, 85 AD3d 845; Rawlings v Gillert, 78 AD3d 806, 807; Caccioppoli v Long Is. Jewish Med. Ctr., 271 AD2d 565, 566). Although the plaintiff's conduct was willful and contumacious, contrary to the contention of the defendant Mount Vernon Hospital, under the  circumstances of this case, the sanction of striking the complaint would have been too harsh. Accordingly, the Supreme Court providently exercised its discretion in granting its motion pursuant to CPLR 3126 to the extent of precluding the plaintiff from testifying at trial.

The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew. The additional facts submitted upon renewal were personally known to the plaintiff when the original motion was made, and she did not proffer a reasonable excuse for her failure to present those facts at that time (see Saunds v Estate of Johnson, 29 AD3d 670, 671; Caramoor Capital Group v Blauner, 302 AD2d 550; Caffee v Arnold, 104 AD2d 352).

 Kasoff v KVL Audio Visual Servs., Inc., 2011 NY Slip Op 06651 (1st Dept., 2011)

Plaintiff's motion to strike should have been granted to the extent of prohibiting defendants from offering evidence in support of the contention that plaintiff was fully paid the Miscellaneous commission of $47,731.47, and awarding plaintiff that amount. The record establishes that defendants' counsel actively interfered with discovery by intercepting documents under subpoena to a third party. Defendants also admittedly altered a commission report pertaining to the Miscellaneous account and produced it in the course of discovery as if it were the original business record. These acts, together, evidence a sanctionable pattern of behavior (see 317 W. 87 Assoc. v Dannenberg, 159 AD2d 245, 245-246 [1990]; see also Garnett v Hudson Rent A Car, 258 AD2d 559 [1999]) requiring preclusion.

Facey v Silver Express Cab Corp., 2011 NY Slip Op 06549 (2nd Dept., 2011)

As a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed," a court may issue an order, inter alia, "prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony" or "striking out pleadings" (CPLR 3126 [2], [3]). A court may invoke the drastic remedy of striking a pleading, however, only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Argo v Queens Surface Corp., 58 AD3d 656 [2009]; Paca v City of New York, 51 AD3d 991, 993 [2008]). Here, the record does not support a finding that the appellants willfully and contumaciously failed to produce the defendant Mohammad Akbar for a deposition. Under the circumstances, the appropriate remedy was an order precluding the appellants from calling Akbar as a witness at trial (cf. Patel v DeLeon, 43 AD3d 432, 433 [2007]; Williams v Ryder TRS, Inc., 29 AD3d 784, 785 [2006]).

Tener v Cremer, 2011 NY Slip Op 06543 (1st Dept., 2011)

The Uniform Rules addressing the discovery of ESI are fairly recent. They took effect in 2009. However, the Commercial Division Rules have addressed discovery of ESI for some time. Rule 8(b) of the rules contains requirements similar to those in the Uniform Rules. The Commercial Division for Supreme Court, Nassau County has built on Commercial Division rule 8(b) to develop the most sophisticated rules concerning discovery of ESI in the State of New York. That court also publishes in depth guidelines for the discovery of ESI (the Nassau Guidelines). While aimed at parties, the Nassau Guidelines are appropriate in cases, such as this, where a nonparty's data is at issue.  

ESI is difficult to destroy permanently. Deletion usually only makes the data more difficult to access. Accordingly, discovery rules contemplate data recovery. For instance, the Uniform Rules include the "anticipated cost of data recovery and proposed initial allocation of such cost" in the scope of electronic discovery (Uniform Rules for Trial Courts [22 NYCRR] § 202.12[c][3]).

The Nassau Guidelines urge that parties should be prepared to address the production of ESI that may have been deleted. The Nassau Guidelines state that at the preliminary conference, counsel for the parties should be prepared to discuss:

"identification, in reasonable detail, of ESI that is or is not reasonably accessible, without undue burden or cost, the methods of storing and retrieving ESI that is not reasonably accessible, and the anticipated costs and efforts involved in retrieving such ESI."

(New York State Supreme Court, Commercial Division, Nassau County, Guidelines for Discovery of Electronically Stored Information [ESI]), effective June 1, 2009, II[c][4]).

The Nassau Guidelines also suggest that the parties be prepared to discuss "the need for certified forensic specialists and/or experts to assist with the search for and production of ESI" (id. at II [c][13]) Most important, the Nassau Guidelines do not rule out the discoverability of deleted data, but rather suggest a cost/benefit analysis involving how difficult and costly it would be to retrieve it:

"As the term is used herein, ESI is not to be deemed inaccessible' based solely on its source or type of storage media. Inaccessibility is based on the burden and expense of recovering and producing the ESI and the relative need for the data" (id. at IV).[FN4]

The Federal Rules of Civil Procedure take a similar, although slightly more restrictive, approach. Rule 45 provides specific protections to non-parties. A person responding to a subpoena "need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost" (Fed Rules Civ  Pro rule 45[d][1][D]). Moreover, "non-party status is a significant factor in determining whether the burden imposed by a subpoena is undue" (Whitlow v Martin, 263 FRD 507, 512 [CD Ill 2009]). Nevertheless, a federal court may still "order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C)" (Fed Rules Civ Pro rule 45[d][1][D]). Rule 26(b)(2)(C)(i)-(iii) requires a court to limit any discovery: (1) "that is unreasonably cumulative or duplicative," (2) "can be obtained from some other source that is more convenient, less burdensome or less expensive," (3) "where the party has already had ample opportunity to obtain the information by discovery in the action" or (4) when "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues." The Advisory Committee Notes explain that the costs of retrieving the information are properly part of this analysis.

Meanwhile, some federal courts have suggested strict limits on the discovery of specific types of data that are typically overwritten or ephemeral. For example, the Seventh Circuit Electronic Discovery Pilot Program has adopted several "principles" to guide litigants through the discovery of ESI. In particular, Principle 2.04 governing the scope of preservation states that certain categories of ESI "generally are not discoverable in most cases." (Seventh Circuit Electronic Discovery Committee, Seventh Circuit Electronic Discovery Pilot Program, 14-15, Oct. 1, 2009). These categories include:

1 "Deleted," slack," fragmented," or "unallocated" data on hard drives; 2 Random access memory (RAM) or other ephemeral data; 3 On-line access data such as temporary internet files, history, cache, cookies etc; 4 Data in metadata fields that are frequently updated automatically, such as last-opened dates; 5 Backup data that is substantially duplicative of data that is more accessible elsewhere; and 6 Other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business (id.). However, the federal courts may still order the discovery of data from these sources in an appropriate case (see Victor Stanley, Inc. v. Creative Pipe, Inc. 269 FRD 497, 524 [D Md. 2010]["[t]he general duty to preserve may also include deleted data, data in slack spaces, backup tapes, legacy systems, and metadata."]); Columbia Pictures, Inc. v. Bunnell, 245 FRD 443 [CD Cal. 2007] [ordering production of server log data]). We also note Judge Scheindlin's groundbreaking decision in Zubulake v UBS Warburg, LLC, 217 FRD 309, 316 [SDNY 2003] [in developing framework for cost/benefit analysis, court noted that discovery obligations apply not only to "electronic documents that are currently in use, but also [to] documents that may have been deleted and now reside only on backup disks."]).

Based on the specific facts of this case, we find that the Nassau Guidelines provide a practical approach. To exempt inaccessible data presumptively from discovery might encourage quick deletion as a matter of corporate policy, well before the spectre of litigation is on the  horizon and the duty to preserve it attaches. A cost/benefit analysis, as the Nassau Guidelines provide, does not encourage data destruction because discovery could take place regardless. Moreover, similar to rule 26(b)(2)(C)(iii), the approach of the Nassau Guidelines, has the benefit of giving the court flexibility to determine literally whether the discovery is worth the cost and effort of retrieval.

Here, plaintiff has variously described the information it seeks as stored in a "cache" file, as "unallocated" data or somewhere in backup data. Data from these sources is difficult to access. But, plaintiff's only chance to confirm the identity of the person who allegedly defamed her may lie with NYU. Thus, plaintiff has demonstrated "good cause" (see Fed Rules Civ Pro rule 45[d][1][D]) necessitating a cost/benefit analysis to determine whether the needs of the case warrant retrieval of the data.

However, the record is insufficient to permit this court to undertake a cost/benefit analysis. Accordingly, we remand to Supreme Court for a hearing to determine at least: (1) whether the identifying information was written over, as NYU maintains, or whether it is somewhere else, such as in unallocated space as a text file; (2) whether the retrieval software plaintiff suggested can actually obtain the data; (3) whether the data will identify actual persons who used the internet on April 12, 2009 via the IP address plaintiff identified; (4) which of those persons accessed Vitals.com and (5) a budget for the cost of the data retrieval, including line item(s) correlating the cost to NYU for the disruption [FN5]. Some of these questions (particularly [1] and [2]) may involve credibility determinations. Until the court has this minimum information, it cannot assess "the burden and expense of recovering and producing the ESI and the relative need for the data" (Nassau Guidelines) and concomitantly whether the data is so "inaccessible" that NYU does not have the ability to comply with the subpoena. That NYU is a nonparty should also figure into the equation (see Whitlow 263 FRD at 512). Of course in the event the data is retrievable without undue burden or cost, the court should give NYU a reasonable time to comply with the subpoena.

Further, it is worth mentioning that CPLR 3111 and 3122(d) require the requesting party to defray the "reasonable production expenses" of a nonparty. Accordingly, if the court finds after the hearing that NYU has the ability to produce the data, the court should allocate the costs of this production to plaintiff and should consider whether to include in that allocation the cost of disruption to NYU's normal business operations. In this latter consideration, the court should also take into account that plaintiff waited one year before sending the subpoena and preservation letter.

The court also erred in transferring the case to Civil Court. Although the complaint seeks damages, it also seeks equitable relief that is not within the jurisdiction of Civil Court (see CPLR 325[d]; W.H.P. 20 v Oktagon Corp., 251 AD2d 58, 59 [1998]).

Accordingly the order of the Supreme Court, New York County (Doris Ling-Cohan, J.),  entered September 14, 2010, that denied plaintiff's motion to hold nonparty NYU in contempt for failing to comply with a judicial subpoena, should be reversed, on the law, without costs, and the matter remanded to Supreme Court for a hearing on whether the information plaintiff seeks is "inaccessible" and hence whether NYU has the ability to comply with the subpoena. The order of the same court and Justice, entered September 24, 2010, that sua sponte transferred the action to the Civil Court pursuant to CPLR 325(d), should be reversed, on the law, without costs, and the order of transfer vacated.

Hoi Wah Lai v Mack, 2011 NY Slip Op 08563 (2nd Dept., 2011)

The Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion pursuant to CPLR 3126 to strike the appellants' answer. A court may strike an answer as a sanction if a defendant "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126; see Thompson v Dallas BBQ, 84 AD3d 1221; Mazza v Seneca, 72 AD3d 754). However, the drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant's failure to comply with discovery demands was willful or contumacious (see Polsky v Tuckman, 85 AD3d 750; Moray v City  of Yonkers, 76 AD3d 618; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654; Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Here, the plaintiffs failed to make such a showing. At the time the plaintiffs moved to strike the appellants' answer, the action had been pending for less than five months, the appellants had not missed any court-ordered deadlines, and, in fact, the appellants had already served a response to the plaintiffs' notice to produce (see Palomba v Schindler El. Corp., 74 AD3d 1037, 1038). In addition, the motion was not supported by an affirmation of good faith, as required by 22 NYCRR 202.7 (see Quiroz v Beitia, 68 AD3d 957, 960; Dennis v City of New York, 304 AD2d 611, 613).

Ferguson v Hess Corp., 2011 NY Slip Op 08478 (1st Dept., 2011)

Supreme Court providently exercised its discretion in vacating plaintiff's default and restoring the action to the calendar. The action has merit, plaintiff has substantially complied with discovery and retained new counsel, and there is a strong public policy favoring resolution of cases on the merits (Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]). In view of the foregoing, we need not reach defendants' argument regarding plaintiff's motion to renew.

CPLR § 3126 is a creeper

CPLR § 3126

Callaghan v Curtis, 82 AD3d 818 (App. Div., 2nd 2011)

"[A] trial court is given broad discretion to oversee the discovery process" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]). Here, the plaintiff clearly violated a prior order of the Supreme Court by failing to bring certain documents to her deposition. Her attorney also made extensive "speaking objections" during the deposition, and the plaintiff herself repeatedly refused to answer clear questions. We conclude that the Supreme Court providently exercised its discretion, upon the defendants' motion pursuant to CPLR 3126 to strike her reply to their counterclaims, by, inter alia, precluding the plaintiff from offering any documents at trial (see e.g. O'Neill v Ho, 28 AD3d 626, 627 [2006]).

Delarosa v Besser Co., 2011 NY Slip Op 06016 (2nd Dept., 2011)

The Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to dismiss the complaint pursuant to CPLR 3126(3), since there was no clear showing that the plaintiff's failure to comply with the appellants' discovery demand was willful and contumacious (see CPLR 3126; ACME ANC Corp. v Read, 55 AD3d 854, 855; Myung Sum Suh v Jung Ja Kim, 51 AD3d 883; Manko v Lenox Hill Hosp., 44 AD3d 1014; Resnick v Schwarzkopf, 41 AD3d 573). The plaintiff substantially, albeit tardily, complied with the discovery demand (see Mironer v City of New York, 79 AD3d 1106, 1108; ACME ANC Corp. v Read, 55 AD3d at 855; Resnick v Schwarzkopf, 41 AD3d 573).

5015

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Dimitriadis v Visiting Nurse Serv. of N.Y., 2011 NY Slip Op 04410 (App. Div., 2nd 2011)

A motion to vacate a default is addressed to the sound discretion of the Supreme Court (see Gerdes v Canales, 74 AD3d 1017; Scala v 4020 Jerusalem Owners, Inc., 72 AD3d 926, 927; Matter of Lee v Morgan, 67 AD3d 681, 682; Holt Constr. Corp. v J & R Music World, 294 AD2d 540). To obtain relief from a default pursuant to CPLR 5015(a)(1), the moving defendant must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see Felsen v Stop & Shop Supermarket Co., LLC,AD3d, 2011 NY Slip Op 02840 [2d Dept 2011]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695, 696; Farrah v Pinos, 78 AD3d 1115; Francis v Long Is. Coll. Hosp., 45 AD3d 529, 530). Other factors which the court should consider include whether the default prejudiced the opposing party, whether it was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible (see U.S. Bank, N.A. v Dick, 67 AD3d 900, 902; Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 832-833; Moore v Day, 55 AD3d 803, 804).

Contrary to the plaintiffs' contentions, the Supreme Court providently exercised its discretion in granting the defendant's motion to vacate its default. The defendant established a reasonable excuse for the default, and the affidavit of its expert demonstrated the existence of a potentially meritorious defense. Furthermore, the record does not indicate that the plaintiffs were prejudiced by the default or that the default was willful or part of a pattern of neglect, and the vacatur of the default advances the public policy of resolving actions on their merits (see e.g. Dorio v County of Suffolk, 58 AD3d 594, 595; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 673; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522, 523).

Assael v 15 Broad St., LLC, 2011 NY Slip Op 03984 (App. DIv., 2nd 2011)

Upon the plaintiff's appeal, in a decision and order dated March 16, 2010, this Court determined that the defendant's motion to vacate the default judgment should have been denied (see Assael v 15 Broad St., LLC, 71 AD3d 802). Following that appeal, the plaintiff sought to collect the proceeds of the subject bond. The defendant moved, inter alia, to discharge the subject bond, arguing that it had been issued as a condition of vacating the default judgment. The Supreme Court, among other things, granted that branch of the defendant's motion which was to discharge the subject bond. We affirm the order insofar as appealed from.

"A court which renders a judgment or order may relieve a party from it upon such terms as may be just'(CPLR 5015[a]), including the imposition of a bond or undertaking" (Doris v Lewis, 76 AD3d 536, 537; see Yadid, LLC v GCW Bell Corp., 48 AD3d 799, 800; Testwell Craig Labs. v Charles Assoc., 264 AD2d 836, 837). Here, the Supreme Court directed the defendant to post a bond "as a condition of vacatur" of the default judgment. However, upon this Court's decision and order dated March 16, 2010, determining that the defendant's motion to vacate the aforementioned default judgment should have been denied, the parties were, in effect, returned to the status quo ante, namely, that prior to the defendant's motion to vacate its default. Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to discharge the subject bond.

Ogunmoyin v 1515 Broadway Fee Owner, LLC, 2011 NY Slip Op 05469 (App. Div., 2nd 2011)

While law office failure can be accepted as a reasonable excuse in the exercise of a court's sound discretion, the movant must submit supporting facts to explain and justify the default, and mere neglect is not accepted as a reasonable excuse (see Morrison v Rosenberg, 278 AD2d 392, 392; Cole-Hatchard v Grand Union, 270 AD2d 447, 447; De Vito v Marine Midland Bank, 100 AD2d 530, 531).

Here, the plaintiff's proffered excuse of law office failure was vague and unsubstantiated and, thus, did not constitute a reasonable excuse for the default (see Knowles v Schaeffer, 70 AD3d 897, 898; Chechen v Spencer, 68 AD3d 801, 802; Murray v New York City Health & Hosps. Corp., 52 AD3d 792, 793; St. Luke's Roosevelt Hosp. v Blue Ridge Ins. Co., 21 AD3d 946, 947). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to vacate so much of the order dated November 13, 2009, as was entered upon her default in opposing the defendants' separate motions for summary judgment dismissing the complaint (see Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904; Antoine v Bee, 26 AD3d 306; Matter of Hye-Young Chon v Country-Wide Ins. Co., 22 AD3d 849).

Tribeca Lending Corp. v Bartlett, 2011 NY Slip Op 03896 (App. DIv., 1st 2011)

To the extent that defendant's motion to vacate can be construed as based on lack of jurisdiction, pursuant to CPLR 5015(a)(4), the motion fails because defendant formally appeared in this action in June 2007 when he served an answer (see CPLR 320). The fact that an order was entered in January 2008
striking his answer does not vitiate defendant's formal appearance or divest the court of personal jurisdiction over him.

Stasiak v Forlenza, 2011 NY Slip Op 04448 (App. Div., 2nd 2011

The order dated January 12, 2009, granting the wife's unopposed motion, in effect, for summary judgment on the complaint, was rendered at a time when the proceedings were stayed pursuant to both the order dated January 8, 2009, and CPLR 321(c) (see Moray v Koven & Krause, Esqs., 15 NY3d 384, 388-390; Albert v Albert, 309 AD2d 884, 886; Chavoustie v Shaad, 133 AD2d 532). Thus, the Supreme Court erred in issuing the judgment entered March 2, 2009, upon the order dated January 12, 2009. Accordingly, the Supreme Court should have granted that branch of the husband's motion which was to vacate the judgment entered on March 2, 2009, pursuant to CPLR 5015(a) in the interests of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; Wade v Village of Whitehall, 46 AD3d 1302, 1303; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d 629, 630; Lane v Lane, 175 AD2d 103, 105).

The Supreme Court also erred in issuing the judgment entered July 8, 2009. At the time of the inquest, the wife had already been granted all of the relief she requested in the complaint, and the husband had no notice that the wife would be seeking an additional award far greater than that sought in the complaint. Moreover, the husband had no representation at the inquest, and did not ask any questions or present any evidence. Based on the wife's testimony that she was owed a particular amount, the Supreme Court awarded her all of the sums that could potentially become due over the 10-year period following the date of the separation agreement. Because the separation agreement did not contain an acceleration clause, the wife was not entitled to these sums at time she made the request (see Long Is. R.R. Co. v Northville Indus. Corp., 41 NY2d 455, 466; McCready v Lindenborn, 172 NY 400, 408; Runfola v Cavagnaro, 78 AD3d 1035; Zarembka v Zarembka, 81 AD2d 742; Gutman v Gutman, 51 AD2d 535, 536). Further, the amount awarded in the judgment entered July 8, 2009, was based on the assumption that the husband would be required to pay the maximum $1,000 per month for the wife's health insurance premiums and $350 per month for the wife's cell phone expenses, while the evidence the wife submitted in support of her earlier motion, in effect, for summary judgment on the complaint showed that her actual monthly health insurance and cell phone expenses were usually substantially less than these amounts. Accordingly, the Supreme Court should have granted that branch of the husband's motion which was to vacate the judgment entered July 8, 2009, pursuant to CPLR 5015(a) in the interests of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d at 68; Wade v Village of Whitehall, 46 AD3d at 1303; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d at 630; Lane v Lane, 175 AD2d at 105).

 

Rampersant v Nationwide Mut. Fire Ins. Co., 2010 NY Slip Op 02530 (App. Div., 2nd, 2010)

The defendant moved pursuant to 22 NYCRR 202.21(e), inter alia, to vacate the note of issue, contending that the plaintiff failed to comply with, among other things, certain demands for bank and credit card statements and authorizations for cellular phone records for the years 2005 and 2006. By order dated March 6, 2009, the Supreme Court granted the defendant's motion, inter alia, to vacate the note of issue only to the extent of directing the plaintiff to provide authorizations for the disclosure of his Wachovia Bank statements, credit card statements, and cellular phone records for the time period between January 1, 2006, and August 2006. The defendant subsequently moved, inter alia, to modify the order dated March 6, 2009, to extend the time period of disclosure to include August 1, 2005, through December 31, 2005. In support thereof, the defendant submitted the plaintiff's application for automobile insurance dated August 7, 2005, to demonstrate that the requested discovery was material and necessary to the defense of this action. The court denied that branch of the defendant's motion which was to modify the prior order.

The Supreme Court providently exercised its discretion in declining to vacate the note of issue, since it directed discovery to be completed by a date certain (see Joseph v Propst, 306 AD2d 246; Matter of Long Is. Light. Co. v Assessor of Town of Brookhaven, 122 AD2d 794, 795).

However, that branch of the defendant's motion which was to modify the order dated March 6, 2009, to extend the time period of disclosure to include August 1, 2005, through December 31, 2005, should have been granted (see CPLR 5015[a][4]). By submitting the plaintiff's application for insurance dated August 7, 2005, the defendant demonstrated that the disclosure sought for the time period between August 1, 2005, and December 31, 2005, was material and necessary to the defense of this action (see CPLR 3101[a]; Insurance Law § 3105[a]; Cain v United Ins. Co., 232 SC 397, 401, 102 SE2d 360; Barkan v New York Schools Ins. Reciprocal, 65 AD3d 1061, 1064; Tannenbaum v Provident Mut. Life Ins. Co. of Phila., 53 AD2d 86 affd 41 NY2d 1087).

Disclosure, lots of it

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR § 4504. Physician, dentist, podiatrist, chiropractor and nurse

CPLR R. 3120 Discovery and production of documents and things for inspection, testing, copying or photographing

CPLR § 3101 Scope of disclosure

CPLR R. 3124 Failure to disclose; motion to compel disclosure

22 NYCRR 202.21 Note of issue and certificate of readiness

Congel v Malfitano, 2011 NY Slip Op 04406 (App. Div., 2nd 2011)

Contrary to the defendant's contentions, the Supreme Court providently exercised its discretion in denying that branch of his cross motion which was for leave to amend his answer to assert counterclaims pursuant to Partnership Law §§ 73 and 74. Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b]), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see Brooks v Robinson, 56 AD3d 406, 407; Scofield v DeGroodt, 54 AD3d 1017, 1018; Lucido v Mancuso, 49 AD3d 220, 227). Here, the defendant's proposed amended counterclaims were patently devoid of merit.

CPLR 3101(a) provides for, inter alia, "full disclosure of all matter material and necessary in the prosecution or defense of an action." Although the phrase "material and necessary" must be "interpreted liberally" in favor of disclosure so long as the information sought meets the test of "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69-70), a party does not have the right to uncontrolled and unfettered disclosure (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408, 410; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531). Further, the Supreme Court has broad discretion over the supervision of disclosure, and its determination will not be disturbed absent an improvident exercise of discretion (see Spodek v Neiss, 70 AD3d 810, 810; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694, 695; Cabellero v City of New York, 48 AD3d 727, 728).

On the defendant's prior appeal, this Court remitted the matter to the Supreme Court, Dutchess County, for, inter alia, further proceedings on the issue of damages caused to the plaintiffs by the defendant's wrongful dissolution of the Poughkeepsie Galleria Company Partnership, as well as a determination of the value of the defendant's interest in that partnership at the time of the wrongful dissolution (see Congel v Malfitano, 61 AD3d 810; Partnership Law § 69[2][c][II]). Given that the remaining issues to be resolved in this matter are narrow (see Partnership Law § 69[2][c][II]), the Supreme Court did not improvidently exercise its discretion in limiting the scope of discovery and providing for an expedited discovery schedule.

Thompson v Dallas BBQ, 2011 NY Slip Op 04451 (App. Div., 2nd 2011)

Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed'" (Mazza v Seneca, 72 AD3d 754, 754, quoting CPLR 3126). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126[3]; Kihl v Pfeffer, 94 NY2d 118, 122-123; Bernal v Singh, 72 AD3d 716). The drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands is willful and contumacious (see CPLR 3126[3]; Kyung Soo Kim v Goldmine Realty, Inc., 73 AD3d 709; Moray v City of Yonkers, 72 AD3d 766).

Here, there was no such clear showing that the defendants' conduct was willful and contumacious (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to strike the defendants' answer.

Gille v Long Beach City School Dist., 2011 NY Slip Op 04202 (App. Div., 2nd 2011)

While it is unclear whether the school district negligently lost or intentionally destroyed key evidence (see Denoyelles v Gallagher, 40 AD3d 1027; Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343), it is uncontested that the school district is unable to locate the window shade, the very instrumentality giving rise to the infant plaintiff's injuries. However, because the determination of spoliation sanctions is within the broad discretion of the trial court (see Iamiceli v General Motors Corp., 51 AD3d 635; Barnes v Paulin, 52 AD3d 754; Dennis v City of New York, 18 AD3d 599), the matter must be remitted to the Supreme Court, Nassau County, for its determination of the cross motion on the merits (see American Fed. of School Adm'rs, AFL-CIO v Council of Adm'rs & Supervisors, 266 AD2d 417, 418; Polera Bldg. Corp. v New York School Constr. Auth., 262 AD2d 295).

Lopez v Retail Prop. Trust, 2011 NY Slip Op 04008 (App. Div., 2nd 2011)

The Supreme Court, in its discretion, may grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Wigand v Modlin, 82 AD3d 1213; Owen v Lester, 79 AD3d 992; Audiovox Corp. v Benyamini, 265 AD2d 135, 140). The compliance conference order dated February 17, 2010, warning the plaintiff that failure to file a note of issue within 90 days would result in dismissal of the action, did not mandate that all discovery be complete prior to the filing of the note of issue. Even though the defendant Kone, Inc. (hereinafter the defendant), was impeding discovery, the plaintiff filed a conditional note of issue as directed by the compliance conference order. It was not until after the filing of the conditional note of issue that the defendant moved for a protective order with respect to the plaintiff's discovery requests, on the ground that they were untimely. Under these circumstances, the plaintiff's cross motion to compel the defendant to comply with outstanding discovery should have been granted (see Karakostas v Avis Rent A Car Sys., 306 AD2d 381, 382; Schmitt v Carl Meyer's Hof, Inc., 86 AD2d 985).

Olkovetsy v Friedwald Ctr. for Rehabilitation & Nursing, LLC, 2011 NY Slip Op 04015 (App. Div. 2nd 2011)

Pursuant to CPLR 4504(a), information obtained by, among others, professional nursing personnel in attending to a patient in a professional capacity and "which [is] necessary to enable him [or her] to act in that capacity" is privileged. As a general rule, disclosure of the name and address of a nonparty patient who may have been a witness to an alleged act of negligence or malpractice does not violate the patient's privilege of confidentiality of treatment (see Rabinowitz v St. John's Episcopal Hosp., 24 AD3d 530; Hirsch v Catholic Med. Ctr. of Brooklyn & Queens, 91 AD2d 1033, 1034; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530-531), provided that the requesting party "is not seeking to identify the patient by reference to the medical treatment he [or she] received" (Matter of Seymour, 288 AD2d 894, 894).

Contrary to the defendants' contention, in light of the broad range of services provided in a nursing home, the information requested by the plaintiff did not fall within the ambit of CPLR 4504(a) (see generally Rabinowitz v St. John's Episcopal Hosp., 24 AD3d 530; cf. Gunn v Sound Shore Med. Ctr. of Westchester, 5 AD3d 435, 437). Additionally, the information demanded by the plaintiff was necessary to the prosecution of the action and, as limited by the Supreme Court to the period from January 1, 2005, through February 28, 2005, and to only the residents of the decedent's particular unit of residency, the demand was not overly broad or unduly burdensome (see Grant v PALJR, LLC, 64 AD3d 750, 751).

Trueforge Global Mach. Corp. v Viraj Group., 2011 NY Slip Op 04040 (App. Div., 2nd 2011)

The Supreme Court properly denied the defendants' cross motion for summary judgment dismissing the complaint pursuant to General Obligations Law § 5-701(a)(10). "[I]n a contract action[,] a memorandum sufficient to meet the requirements of the Statute of Frauds must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter" (Morris Cohon & Co. v Russell, 23 NY2d 569, 575; see Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 378-379). "If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482, cert denied 498 US 816; see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109). Thus, "a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable" (Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d at 109; see 2004 McDonald Ave. Realty, LLC v 2004 McDonald Ave. Corp., 50 AD3d 1021; Andor Group v Benninghoff, 219 AD2d 573). Further, while General Obligations Law § 5-701(a)(10) applies to contracts implied in law to pay reasonable compensation (see Snyder v Bronfman, 13 NY3d 504), in an action to recover reasonable compensation, "a sufficient memorandum need only evidence the fact of plaintiff's employment by defendant to render the alleged services" (Morris Cohon & Co. v Russell, 23 NY2d at 575-576)."The obligation of the defendant to pay reasonable compensation for the services is then implied" (id. at 576). Contrary to the defendants' contention, they failed to establish their prima facie entitlement to judgment as a matter of law based on the statute of frauds, as certain e-mail correspondence (see General Obligations Law § 5-701[b][4]; Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 AD3d 476, 477; see also Intercontinental Planning v Daystrom, Inc., 24 NY2d at 379; Aloisi v Coin Phones, 157 AD2d 688) was sufficient to set forth an objective standard for determining the compensation to be paid to the plaintiff as a finder's fee, since it was tied to an extrinsic event, i.e., it was expressed as a percentage of the price paid by the defendants for the located acquisition opportunity, thus rendering the terms definite and enforceable (see Tonkery v Martina, 78 NY2d 893; Novello v 215 Rockaway, LLC, 70 AD3d 909; Edge Mgt. Corp. v Crossborder Exch. Corp., 304 AD2d 422; cf. MP Innovations, Inc. v Atlantic Horizon Intl., Inc., 72 AD3d 571).

Furthermore, the Supreme Court did not improvidently exercise its discretion in granting, upon reargument, the plaintiff's motion to compel a deposition of nonparty Neeraj Kochhar. "[A] corporation has the right in the first instance to determine which of its representatives will appear for an examination before trial" (Barone v Great Atl. & Pac. Tea Co., 260 AD2d 417, 417-418; see Aronson v Im, 81 AD3d 577, 577; Nunez v Chase Manhattan Bank, 71 AD3d 967; Mercado v Alexander, 227 AD2d 391). The moving party that is seeking additional depositions has the burden of demonstrating "(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case" (Zollner v City of New York, 204 AD2d 626, 627; see Thristino v County of Suffolk, 78 AD3d 927; Spohn-Konen v Town of Brookhaven, 74 AD3d 1049; Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d 930, 932-933; Nazario v City of New York, 27 AD3d 439; Barone v Great Atl. & Pac. Tea Co., 260 AD2d at 418). Here, the plaintiff satisfied this burden by demonstrating that the representative produced by the defendants for deposition did not have sufficient knowledge of the events giving rise to the complaint (see Nunez v Chase Manhattan Bank, 71 AD3d 967), and that there was a substantial likelihood that Neeraj Kochhar possessed information which was material and necessary to the issue of whether the plaintiff was entitled to payment of a finder's fee (see Nazario v City of New York, 27 AD3d 439; cf. Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d at 932-933).

Waiver

Fernandez v City of New York, 2011 NY Slip Op 04111 (App. Div., 1st 2011)

Plaintiff has waived her claim that defendants' failure to produce "legible" photographs of the underside of the desk after the accident required an adverse inference that such photographs would have provided notice. The record shows that she was aware of the photographs yet filed a note of issue certifying that discovery was complete (see Escourse v City of New York, 27 AD3d 319 [2006]). In any event, the photographs would not have been probative as to notice, since the track was not visible until after the drawer fell.

The perils of social networking and other discovery issues

In this case, nothing came of it, but it remains dangerous to those who are unaware.  Turk wrote about it too.

CPLR § 3101 Scope of disclosure

Abrams v Pecile. 2011 NY Slip Op 03108 (App. Div., 1st 2011)

In this action for, among other things, conversion and intentional infliction of emotional distress, plaintiff alleges that defendant, a former employee of plaintiff's husband, retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleges that defendant refused to return the CD and photographs unless plaintiff's husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff's husband and his brother.

Supreme Court improvidently exercised its discretion in ordering plaintiff to comply with the outstanding discovery demands. With respect to defendant's demand for access to plaintiff's social networking accounts, no showing has been made that "the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Vyas v Campbell, 4 AD3d 417, 418 [2004][internal quotation marks and citation omitted]; see also McCann v Harleysville Ins. Co. of N.Y., 78 AD3d 1524, 1525 [2010]). Because plaintiff admits that she has copies of the photographs contained on the subject CD, defendant has also failed to show that she needs access to plaintiff's hard drive in order to defeat plaintiff's conversion claim. Nor has defendant shown that broad discovery concerning plaintiff's finances, education, immigration status, and educational background is "material and necessary" (CPLR 3101[a]).

With respect to defendant's demand for materials prepared in anticipation of litigation, defendant has failed to show "substantial need" for the materials or that she is "unable without undue hardship to obtain the substantial equivalent of the materials by other means" (Santariga v McCann, 161 AD2d 320, 321-322 [1990]; see CPLR 3101[d][2]). Further, defendant is not entitled to privileged communications between plaintiff and her prior counsel (see CPLR 4503[a]).

Discovery of materials concerning plaintiff's family and her husband's business should be obtained through nonparty discovery pursuant to CPLR 3101(a)(4).

Defendant's remaining discovery demands are either overbroad or irrelevant.

JFK Family Ltd. Partnership v Millbrae Natural Gas Dev. Fund 2005, L.P., 2011 NY Slip Op 03211 (App. Div., 2nd 2011)

No appeal lies as of right from an order denying an application to direct a witness to respond to questions posed during the course of a deposition (see McGuire v Zarlengo, 250 AD2d 823, 824; Mann v Alvarez, 242 AD2d 318, 320). However, this Court may deem the plaintiffs' notice of appeal from such an order to be an application for leave to appeal, and grant leave to appeal (see McGuire v Zarlengo, 250 AD2d at 824; Mann v Alvarez, 242 AD2d at 320), and we do so here. 

CPLR 3101(a) requires, in pertinent part, "full disclosure of all matter material and necessary in the prosecution or defense of an action." Generally, CPLR 3101 is to be construed liberally in favor of disclosure, so long as the information sought meets the test of "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406, 406-407; see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69-70). However, the principle of "full disclosure" does not give a party the right to uncontrolled and unfettered disclosure (see Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531). Moreover, the Supreme Court has broad discretion over the supervision of disclosure, and its determination will not be disturbed absent an improvident exercise of that discretion (Spodek v Neiss, 70 AD3d 810, 810; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694, 695; Cabellero v City of New York, 48 AD3d 727, 728; Gilman & Ciocia, Inc. v Walsh, 45 AD3d at 531). Under the circumstances of this case, the Supreme Court's denial of those branches of the plaintiffs' motion pursuant to CPLR 3216 which were to compel the defendants to disclose certain documentary evidence and its grant of those branches of the defendants' cross motion which were for a protective and confidentiality order as to certain evidence sought through discovery, were provident exercises of its discretion.

The plaintiffs' remaining contentions, including those referable to their application to compel deposition witnesses to respond to certain questions, are without merit.

Taylor v New York City Hous. Auth., 2011 NY Slip Op 03229 (App. Div., 2nd 2011)

"[N]o appeal as of right lies from an order directing a party to answer questions propounded at an examination before trial" (Nappi v North Shore Univ. Hosp., 31 AD3d 509, 510-511 see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69). An order deciding "a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and as such is not appealable as of right even where it was made upon a full record and on the defendant's motion to compel responses" (Singh v Villford Realty Corp., 21 AD3d 892, 893 [citations omitted]; see Daniels v Fairfield Presidential Mgt. Corp., 43 AD3d 386, 387; Cedrone v Bon Secours Community Hosp., 31 AD3d 596). The plaintiffs have not sought leave to appeal, and there is nothing in the record that would warrant granting leave to appeal on the Court's own motion (see Daniels v Fairfield Presidential Mgt. Corp., 43 AD3d at 387).

W&W Glass, LLC v 1113 York Ave. Realty Co. LLC, 2011 NY Slip Op 02786 (App. Div., 1st 2011)

 

The record fails to support the motion court's determination that defendants' failure to comply with discovery obligations was willful, or in bad faith (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [2010]; Banner v New York City Hous. Auth., 73 AD3d 502 [2010]. Absent such showing, the motion court erred in imposing the "harshest available penalty" against defendants (see Basset v Bando Sangsa Co., 103 AD2d 728, 728 [1984]).

Finally, we note that the record discloses no evidence of defendants' repeated failures to comply with the court's discovery orders. Indeed, there appear to be no prior motions by plaintiff to compel disclosure, rendering any motion to strike the answer pursuant to CPLR 3126 premature in this case.

The bold is mine.

Stuff I meant to post but didn’t feel like it at the time.

 

Bonik v Tarrabocchia, 2010 NY Slip Op 07878 (App. Div., 2nd 2010)

The plaintiff failed to rebut the defendant's sworn statement that he never received a copy of the order entered July 1, 2004, which, inter alia, scheduled a conference for September 29, 2004. The assertion of the plaintiff's attorney that she personally served that order upon the then- pro se defendant was not supported by a proper affidavit of service or other proof of service (see Lambert v Schreiber, 69 AD3d 904). A written statement prepared by the plaintiff's attorney on August 4, 2004, was neither sworn to before a notary public nor subscribed and affirmed to be true under the penalties of perjury and, thus, did not constitute competent evidence of service (see CPLR 2106; Moore v Tappen, 242 AD2d 526). Without notice of the conference, the defendant's "default" was a nullity, as was the remedy imposed by the Supreme Court as a consequence (see CPLR 5015[a][4]; Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376; Tragni v Tragni, 21 AD3d 1084, 1085; cf. Hwang v Tam, 72 AD3d 741, 742). In this situation, vacatur of the default is required as a matter of law and due process, and no showing of a potentially meritorious defense is required (see Pelaez v Westchester Med. Ctr., 15 AD3d at 376; Kumer v Passafiume, 258 AD2d 625, 626). Consequently, the subsequent inquest, the judgment entered March 21, 2006, and the order dated July 16, 2007, were all nullities, and must be vacated. In addition, there was no competent proof that the plaintiff served the defendant with notice of the inquest, a copy of the judgment entered March 22, 2006, with notice of entry, or a copy of the order entered July 20, 2007, with notice of entry.

Rizzo v Kay, 2010 NY Slip Op 09493 (App. Div., 2nd 2010)

Furthermore, under the circumstances of this case, it was not error for the trial court to allow testimony on the issue of whether the appellant abandoned treatment of the plaintiff before fully completing her dental work, and, in effect, to conform the pleadings to the proof adduced at trial by submitting a claim of abandonment to the jury. "A trial court generally has broad discretion to deem the pleadings amended to conform to the evidence presented at the [trial], even absent a motion by a party, provided [that] there is no significant prejudice or surprise to the party opposing the amendment" (Matter of Allstate Ins. Co. v Joseph, 35 AD3d 730, 731; see CPLR 3025[c]; A-1 Check Cashing Serv. v Goodman, 148 AD2d 482). Here, the appellant was not prejudiced or surprised by the admission of evidence on the issue of abandonment and the submission of this issue to the jury, since the issue was explored, and relevant evidence obtained, during discovery (see Alomia v New York City Tr. Auth., 292 AD2d 403, 406; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365, 366).

It was also proper for the trial court to dismiss the appellant's cross claim against the defendant Joseph Maniscalco. The plaintiff failed to present any expert evidence that Dr. Maniscalco departed from good and accepted standards of dental practice, and therefore agreed to withdraw her dental malpractice claim against Dr. Maniscalco at the close of her case. While the appellant opposed Dr. Maniscalco's motion to dismiss the cross claim against him upon the ground that there was a factual dispute as to whether Dr. Maniscalco was an independent contractor who could be held liable for his own acts of malpractice, the appellant's expert witness disclosure statement failed to identify any departures from good and accepted standards of dental practice which Dr. Maniscalco may have committed. Under these circumstances, the trial court providently exercised its discretion in ruling that the appellant would be precluded from offering expert testimony as to whether Dr. Maniscalco committed any acts of dental malpractice (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Parlante v Cavallero, 73 AD3d 1001; Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464), and in concluding that absent such expert testimony, the appellant could not establish a prima facie case of dental malpractice against Dr. Maniscalco, and therefore could not prevail upon his cross claim (see Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745; Sohn v Sand, 180 AD2d 789, 790.

Comice v Justin's Rest., 2010 NY Slip Op 07884 (App. Div., 2nd 2010)

The Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 1003 for leave to amend the summons and complaint to add Andre Suite as a defendant. The statute of limitations expired and the plaintiff failed to demonstrate that the relation-back doctrine was applicable (see CPLR 203[f]; Buran v Coupal, 87 NY2d 173). In order for claims asserted against a new defendant to relate back to the date the claims were filed against an original defendant, the plaintiff must establish, inter alia, that the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well (see Buran v Coupal, 87 NY2d at 178; Arsell v Mass One LLC, 73 AD3d 668, 669; Boodoo v Albee Dental Care, 67 AD3d 717, 718). Here, the plaintiff failed to establish that Suite knew or should have known that, but for a mistake as to the identity of the proper parties, this action would have been brought against him as well (see Boodoo v Albee Dental Care, 67 AD3d at 718; Marino v Westchester Med. Group, P.C., 50 AD3d 861; Yovane v White Plains Hosp. Ctr., 228 AD2d 436, 437; see also Bumpus v New York City Tr. Auth., 66 AD3d 26, 34-35).

Furthermore, the Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 1024 to name Andre Suite as a defendant in lieu of "John Doe." In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired (see Bumpus v New York City Tr. Auth., 66 AD3d at 29-30; Harris v North Shore Univ. Hosp. at Syosset, 16 AD3d 549, 550; Justin v Orshan, 14 AD3d 492, 492-493; Scoma v Doe, 2 AD3d 432, 433; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Here, the plaintiff failed to make such a showing. 

Sanchez v Avuben Realty LLC, 2010 NY Slip Op 08780 (App. Div., 1st 2010)

An application brought pursuant to CPLR 5015 to be relieved from a judgment or order entered on default requires a showing of a reasonable excuse and legal merit to the defense asserted (see Crespo v A.D.A. Mgt., 292 AD2d 5, 9 [2002]). While the failure to keep a current address with the Secretary of State is generally not a reasonable excuse for default under CPLR 5015(a)(1) (id. at 9-10), where a court finds that a defendant failed to "personally receive notice of the summons in time to defend and has a meritorious defense," relief from a default may be permitted (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142 [1986]).

Here, notwithstanding the Secretary of State's maintenance of the wrong corporate address, the evidence of record demonstrates that defendant did receive notice of the summons in time to interpose a defense, and inexplicably failed to do so. It is undisputed that six months after the complaint's filing, counsel for defendant's insurer contacted plaintiff's counsel to discuss settlement, at which time he was informed of the then-pending motion for default judgment. The very fact that settlement options were discussed at this time evidences that defendant was aware of plaintiff's action. Moreover, vacatur of a default judgment is not warranted merely because the default was occasioned by lapses on the part of an insurance carrier (see Klein v Actors & Directors Lab, 95 AD2d 757 [1983], lv dismissed 60 NY2d 559 [1983];Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672 [2006]). The evidence of record also indicates that five months after filing of the summons and complaint, copies thereof were delivered to an undisputably valid address for defendant, as was notice of entry of the Supreme Court's March 26, 2007 order granting plaintiff's motion for default judgment and [*2]noticing an inquest as to damages. Still defendant took no action until approximately two-and-a-half years after the complaint's filing, when plaintiff attempted to collect on the Supreme Court's judgment.

Defendant failed to establish entitlement to vacatur of the default judgment under CPLR 5015(a)(3) due to an alleged fraud perpetrated by plaintiff in support of his complaint, as the affidavit it submitted in support of this claim was both conclusory and recounted hearsay.

Gibbs v St. Barnabas Hosp., 2010 NY Slip Op 09198 (Ct. App. 2010)

Under CPLR 3042 (d), a court may invoke the relief set forth in CPLR 3126 when a "party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule." CPLR 3126, in turn, governs discovery penalties and applies where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." The statute contains a list of nonexclusive sanctions and further permits courts to fashion orders "as are just." CPLR 3126 therefore broadly empowers a trial court to craft a conditional order — an order "that grants the motion and imposes the sanction 'unless' within a specified time the resisting party submits to the disclosure" (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10 ["The conditional order is in fact the most popular disposition under CPLR 3126"]; see also CPLR 3042 [d]).

The situation that developed in this case is, unfortunately, a scenario that we have seen before. In Fiore v Galang (64 NY2d 999 [1985], affg 105 AD2d 970 [3d Dept 1984]), a medical malpractice action, the trial court granted a 30-day conditional order of preclusion directing plaintiffs to serve a bill of particulars on the defendant hospital. Following plaintiffs' lack of compliance with the order, the hospital moved for summary judgment dismissing the complaint. The trial court denied the motion on the condition that plaintiffs serve a bill of particulars and pay $415 to the hospital's attorneys [FN3]. On appeal, the Appellate Division reversed and dismissed the complaint, concluding that the trial court erred in excusing the default without requiring plaintiff to offer both a reasonable excuse and an affidavit of merit. We affirmed, explaining that "absent an affidavit of merits it was error, as a matter of law, not to grant defendant Hospital's motion for summary judgment" (id. at 1000 [emphasis added]).

***

In reaching this conclusion, we reiterate that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; see also Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill, 2 NY3d at 652-653; Kihl, 94 NY2d at 123).

 

 

 

Bad Discovery Demands = Nuke, not prune

CPLR R. 3124

CPLR § 3126

Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 2010 NY Slip Op 08055 (App. Div., 2nd 2010)

The Supreme Court providently exercised its discretion in denying the appellant's motion, inter alia, pursuant to CPLR 3124 and 3126 to compel certain discovery or, in the alternative, to preclude the plaintiff from adducing certain evidence at trial, and granting the plaintiff's cross motion for a protective order vacating his demand for a bill of particulars and inspection. "Where, as here, discovery demands are palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 620; see Astudillo v St. Francis-Beacon Extended Care Facility, Inc., 12 AD3d 469, 470; Latture v Smith, 304 AD2d 534, 536). "[I]t is not for the courts to correct a palpably bad" discovery demand (Lopez v Huntington Autohaus, 150 AD2d 351, 352).