CPLR R. 3124 – Page 2

Discovery

Moore v Federated Dept. Stores, Inc., 2012 NY Slip Op 03112 (1st Dept., 2012)

Any right of direct appeal from the intermediate orders terminated with entry of the final judgment dismissing this wrongful termination action for failure to prosecute (see Matter of Aho, 39 NY2d 241, 248 [1976]). Plaintiff did not appeal from the final judgment, and there is no basis for deeming his appeals from the intermediate orders as having been taken from the subsequent judgment (cf. CPLR 5501[c]; 5520[c]).

Were we to consider plaintiff's arguments on appeal, we would nonetheless find them unavailing. The court properly denied plaintiff's motions to strike and compel, as there was no basis in the record to find defendants' conduct in the discovery process to be willful, contumacious, or in bad faith (see Ayala v Lincoln Medical & Mental Health Center, 92 AD3d 542 [2012]). With respect to the court's imposition of sanctions upon plaintiff's counsel, counsel did not appeal from the order or the subsequent judgment awarding sanctions, and plaintiff was not aggrieved by the award and lacks standing to challenge it (see generally CPLR 5511[a]; Matter of Kyle v Lebovits, 58 AD3d 521 [2009], lv dismissed in part and denied in part 13 NY3d 765 [2009], cert denied __ US __ , 130 S Ct 1524 [2010]). Plaintiff was also not aggrieved by the grant of defendant Macy's motion to compel discovery, as plaintiff did not oppose the motion (see Darras v Romans, 85 AD3d 710, 711 [2011]). To the extent plaintiff challenges the denial [*2]of his motion for a stay of enforcement of the order entered July 16, 2010 pending his appeal from the order, his argument is moot (see Diane v Ricale Taxi, Inc., 26 AD3d 232, 232 [2006]).

Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 2012 NY Slip Op 02598 (1st Dept., 2012)

In granting the motion to dismiss as against Albert Nasser for lack of personal jurisdiction, Supreme Court stated that it was vacating the judgment as against him. However, the judgment in the record on appeal names Albert Nasser as a defendant from whom plaintiffs have recovery, and it is that judgment that we affirm. We find that plaintiffs made a prima facie showing that Albert is subject to jurisdiction in New York through evidence that in the first three months of 2008, he actively traded in the New York-based Merrill Lynch accounts of Inversiones, his personal holding company, and that he participated by telephone in a March 2008 meeting with Merrill Lynch in New York concerning the trading activities at issue in this case (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; compare OneBeacon Am. Ins. Co. v Newmont Min. Corp., 82 AD3d 554, 555 [2011] [no evidence that defendant exercised control over the corporation that purchased insurance policies issued by insurers with principal places of business in New York]).

The Nassers' repeated failure to comply with discovery deadlines or offer a reasonable excuse for their noncompliance with discovery requests, as well as their counsel's [*2]misrepresentations in open court as to the cause of one of their violations, give rise to an inference of willful and contumacious conduct warranting the entry of judgment against them (see Turk Eximbank-Export Credit Bank of Turkey v Bicakcioglu, 81 AD3d 494 [2011]). The Nassers were appropriately warned that judgment would be entered against them if their discovery responses were found by the Special Referee to be noncompliant with plaintiffs' requests (see id.; cf. Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 194 [1998]).

Zimbardi v City of New York, 2012 NY Slip Op 02574 (1st Dept., 2012)

Contrary to plaintiff's contention, the City produced documents relevant to its knowledge of the alleged dangerous condition and, in any event, it was plaintiff's burden to show that the City had prior written notice of the alleged defect, which she failed to do. Nor did she move for sanctions based on the City's alleged wilful failure to produce documents (see CPLR 3126).

Zinger v Service Ctr. of N.Y., Inc., 2012 NY Slip Op 02591 (1st Dept., 2012)

Plaintiff's requests for vehicular insurance policies and governmental filings were irrelevant to his alter-ego claim against the individually named defendant. However, the requests concerning the corporate defendant's bank accounts and credit cards seek documents and information of the type that would yield evidence of misuse of the corporate form (see e.g. Horizon Inc. v Wolkowicki, 55 AD3d 337 [2008]). Accordingly, we find that such records and information, to the extent limited to the period of plaintiff's employment plus one year, are "material and necessary" for the prosecution of the action (CPLR 3101[a]).

Carnegie Assoc. Ltd. v Miller, 2012 NY Slip Op 02422 (1st Dept., 2012) (note the dissent)

The motion court erred in striking the complaint and reply to defendants' counterclaims since neither CPLR § 3126 nor 22 NYCRR 202.26(e) authorizes this sanction under the circumstances. While CPLR § 3126 authorizes the striking of a party's pleadings, this extreme sanction is only authorized when a party "refuses to obey an order for disclosure or willfully refuses to disclose information which the court finds ought to have been disclosed" (CPLR § 3126) (emphasis added). Thus, by its express terms the sanction prescribed by CPLR § 3126 is warranted only upon a party's failure to comply with discovery requests or court orders mandating disclosure (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1988]; Henry Rosenfeld, Inc. v Bower & Gardner, 161 AD2d 374, 374-375 [1990] [dismissal of a party's pleading appropriate when a party "disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR"]; Bassett v Bando Sangsa Co., 103 AD2d 728, 728 [1984]). Here, where plaintiff had already been sanctioned for its failure to provide discovery and where defendants premised the instant motion to strike plaintiff's pleadings primarily on plaintiff's [*2]failure to proceed with court-ordered mediation, CPLR § 3126 simply does not apply.

Similarly, despite plaintiff's conceded failure to proceed with the court-ordered mediation, it was also error to strike its pleadings pursuant to 22 NYCRR 202.26(e). While 22 NYCRR 202.26 authorizes the trial court to schedule pretrial conferences, a mediation, pursuant to Rule 3 of the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70[g]), is not a pretrial conference. More importantly, even if this rule did apply, the only sanction authorized by 22 NYCRR 202.26(e) for a party's failure to appear at a pretrial conference is "a default under CPLR § 3404," which initially only authorizes the striking of the case from the court's trial calendar. Accordingly, here, striking plaintiff's pleadings, which by operation of law resulted in dismissal of this action is not warranted pursuant to 22 NYCRR 202.26(e).

While we agree with the dissent that plaintiff's conduct was egregious, we nevertheless find that the sanction imposed by the motion court, namely, dismissal of plaintiff's complaint and the striking of its reply to defendant's counterclaims was simply not permitted. We further note that, here, plaintiff was in fact penalized for its conduct inasmuch as the motion court granted defendants' motion for costs and fees incurred as a result of plaintiff's failure to proceed to mediation.

In support of its argument that the motion court's order was appropriate, the dissent partly relies on Rule 8(h) of the Commercial Division, Supreme Court, New York County, Rules of the Alternative Dispute Resolution Program. However, the dissent alone raises this argument, one which has never been advanced by any of the parties, either on appeal or below. Therefore, we should not consider it (Misicki v Caradonna, 12 NY3d 511, 519 [2009] ["We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made"]). Moreover, contrary to the dissent's remaining position, 22 NYCRR 202.70(g) Rule 12 does not avail plaintiff since like 22 NYCRR 202.26(e), the dismissal promulgated by Rule 12, which is made more clear by its reference to 22 NYCRR 202.27, is for the failure to appear at a conference and not for the failure to proceed to mediation.

Filatava v Rome Realty Group LLC, 2012 NY Slip Op 02261 (1st Dept., 2012)

Defendant appeals from the striking of its answer as a discovery sanction pursuant to CPLR 3126. It is undisputed that defendant violated three express orders to produce documents responsive to plaintiffs' requests. More egregiously, defendant knew it had no business records of the subject premises, as it failed to retain any records when it sold the premises two months after the instant complaint was filed. Yet, it concealed this information from the court and plaintiffs for some two years. As such, there was ample evidence to support the IAS court's [*2]finding that defendant had wilfully delayed and failed to fulfill its obligations in discovery (cf. Banner v New York City Hous. Auth., 73 AD3d 502, 503 [2010]).

Ellis v Park, 2012 NY Slip Op 01864 (1st Dept., 2012)

Dismissal of the complaint was an improvident exercise of discretion, since defendants failed to "show[] conclusively that [plaintiff's] failure to disclose was wilful, contumacious or in bad faith" (Christian v City of New York, 269 AD2d 135, 137 [2000]; see also Mateo v T & H Enters., 60 AD3d 411 [2009]). Contrary to the motion court's findings, the record does not support the view that plaintiff repeatedly refused to comply with orders regarding disclosure. The argument that plaintiff responded only to defendant Prudential's demand for a bill of particulars and not the demand of defendants Parks, is belied by plaintiff's responses to the demand.

Moreover, the November 16, 2009 preliminary conference order directed plaintiff to be deposed on January 6, 2010. However, during a subsequent telephone conference with the court, plaintiff and the Parks agreed to postpone the deposition to a mutually convenient date. Thus, the fact that plaintiff was not deposed by January 6, 2010 does not constitute disobedience of a court order. Plaintiff appeared and was deposed on two dates set by the court and although it is [*2]true that on the third day of her deposition she said she could not stay beyond 11:45 A.M., she provided a reasonable explanation for having to leave and her counsel was actually engaged later that day.

Rosario v Vasquez, 2012 NY Slip Op 01874 (1st Dept., 2012)

Contrary to the motion court's finding, depositions are not needed, since Guzman-Sosa had personal knowledge of the facts (see Avant, 74 AD3d at 534).

Accent Collections, Inc. v Cappelli Enters., Inc., 2012 NY Slip Op 03121 (2nd Dept., 2012)

" The Supreme Court has broad discretion in the supervision of discovery, and its determinations should not be disturbed on appeal unless improvidently made'" (Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140, quoting Casabona v Huntington Union Free School Dist., 29 AD3d 723, 723). Here, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to vacate the trial readiness order based upon its determination that, pursuant to a compliance conference order, the additional discovery sought by the plaintiff was waived (see Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518; cf. Summers v Kardex Sys., 210 AD2d 216; see generally Foster v Herbert Slepoy Corp., 74 AD3d at 1140; Casabona v Huntington Union Free School Dist., 29 AD3d at 723).

Crawford v Village of Millbrook, 2012 NY Slip Op 03128 (2nd Dept., 2012)

The Supreme Court providently exercised its discretion in denying the plaintiff's motion on the eve of trial to admit the testimony of a newly identified witness. The plaintiff failed to disclose this witness until six years after commencing the action, and failed to provide a reasonable explanation for his delay in disclosing the identity of the witness (see CPLR 3101; Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376; Mayorga v Jocarl & Ron Co., 41 AD3d 132, 134; Ortega v New York City Tr. Auth., 262 AD2d 470).

Colandrea v Choku, 2012 NY Slip Op 03127 (2nd Dept., 2012)

In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff was at fault in the happening of the accident (see Vainer v DiSalvo, 79 AD3d at 1024; Yelder v Walters, 64 AD3d 762, 764). To the extent the defendants suggest the possibility that the accident might have been avoided, or that the plaintiff may have been speeding, such assertions, upon this record, are completely speculative and inadequate to withstand summary judgment (see Socci v Levy, 90 AD3d 1020; Loch v Garber, 69 AD3d at 816; Berner v Koegel, 31 AD3d 591, 592; Jacino v Sugerman, 10 AD3d 593, 595). Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.

The Supreme Court improvidently exercised its discretion, however, in denying those branches of the defendants' timely motion which were to (a) vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a deposition and submit to an independent physical examination. "While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745). Here, although the defendants may have waived their right to conduct a deposition and independent physical examination of the plaintiff by their failure to schedule and complete the deposition and examination by the dates set forth in a preliminary conference order, the circumstances of this case warranted relieving the defendants of the waiver, particularly since there was no prejudice to the plaintiff (see Barbosa v Capolarello, 52 AD3d 629, 629; High Point of Hartsdale I Condominium v AOI Constr., Inc., 31 AD3d 711; Venia v 18-05 215th St. Owners, 288 AD2d 463; Poltorak v Blyakham, 225 AD2d 600). Accordingly, the Supreme Court should have granted those branches of the defendants' motion which were to (a) vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a deposition and submit to an independent physical examination.

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.

Compelled

New Line Stone Co., Inc. v BCRE Servs. LLC, 2011 NY Slip Op 08308 (1st Dept., 2011)

The motion court providently exercised its discretion in requiring defendants to provide more detailed responses to plaintiff's interrogatories 4 through 12, which sought the facts underlying defendants' seven affirmative defenses and three counterclaims. Most of defendants' responses provided general statement of facts, and some responses provided no facts at all. Moreover, defendants failed to meet their burden to establish that the information sought was privileged (see JP Foodservice Distribs. v Sorrento, Inc., 305 AD2d 266 [2003]). However, defendants are not required to respond to interrogatory number 13, since it is repetitive.

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.

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).

Discovery: CPLR § 3126 ;R. 3124 & 22 NYCRR § 202.7; Spoilation & Waiver & a little CPLR R. 3212(a)

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

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

22 NYCRR § 202.7 Calendaring of Motions; Uniform Notice of Motion Form; Affirmation of Good Faith
(a)(2)

Holland v W.M. Realty Mgt., Inc., 2009 NY Slip Op 05844 (App. Div., 2nd, 2009)

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 (see Ingoglia v Barnes & Noble Coll. Booksellers, Inc., 48 AD3d 636, 637; Baglio v St. John's Queens Hosp., 303
AD2d 341, 342). However, striking a pleading as a sanction for
spoliation is appropriate only where the missing evidence deprives the
moving party of the ability to establish his or her claim or defense (see Enstrom v Garden Place Hotel, 27 AD3d 1084, 1086; 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 (see Melendez v City of New York, 2 AD3d 170, 170-171).

A motion for leave to renew "shall be based upon new facts not
offered on the prior motion that would change the prior determination"
(CPLR 2221[e][2]) and "shall contain reasonable justification for the
failure to present such facts on the prior motion" (CPLR 2221[e][3]).
However, it is within a court's discretion to grant leave to renew upon
facts known to the moving party at the time of the original motion (see J.D. Structures v Waldbaum, 282 AD2d 434, 435).

Under the peculiar facts of this action, the Supreme Court
should have granted that branch of the plaintiffs' motion which was for
leave to renew his earlier opposition, and, upon renewal, the prior
order of preclusion should have been vacated. It was uncontested that
the mold samples taken in 2002 had a testable "shelf life" of only six
months. That being the case, the destruction of the swabbed mold
samples caused no prejudice to the defendant inasmuch as those samples
had quickly and naturally lost their testable value (see Bannon v Auerbach, 6 Misc 3d 219,
220-221). The defendant, having been put on notice of the plaintiffs'
claims beginning in December 2001, could have obtained its own mold
samples in 2002, but did not do so. Moreover, the wood sample taken
from the apartment has been recently located, for reasons adequately
explained in the plaintiffs' renewal papers.

Jennosa v Vermeer Mfg. Co., 2009 NY Slip Op 05845 (App. Div., 2nd, 2009)

Moreover, under the circumstances of this case, Governale's loss of the
undeveloped film of the post-accident scene did not warrant the Supreme
Court's determination that he was precluded from offering certain
evidence at trial and allowing an adverse inference charge against him.
"When a party negligently [loses] or intentionally destroys key
evidence, thereby depriving the non-responsible party from being able
to prove its claim or defense, the responsible party may be sanctioned
by the striking of its pleading" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717,
718). However, "where the evidence lost is not central to the case or
its destruction is not prejudicial, a lesser sanction, or no sanction,
may be appropriate" (Klein v Ford Motor Co., 303 AD2d 376, 377).
Contrary to the plaintiff's contentions, the post-accident photographs
that were lost by Governale were not central to the case, and the loss
did not prejudice the plaintiff in opposing Governale's motion for
summary judgment, or otherwise. The plaintiff himself testified that he
inspected the premises prior to commencing his work and that the
underground hose only became visible after it was entangled in the
stump grinder. Thus, any contention that the post-accident photographs
would have depicted conditions demonstrating that Governale had
constructive notice of the alleged dangerous condition is speculative.
Under these circumstances, Governale's loss of the post-accident
photographs did not warrant the imposition of a sanction.

Jones v Grand Opal Constr. Corp., 2009 NY Slip Op 05748 (App. Div., 2nd, 2009)

The defendants waived their right to conduct physical examinations
of the plaintiffs by their failure to arrange for such examinations
within the 45-day period set forth in the parties' preliminary
conference order (see Rodriguez v Sau Wo Lau, 298 AD2d 376; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266
AD2d 199, 200), and by their failure to move to vacate the note of
issue within 20 days after service of it and the certificate of
readiness (see 22 NYCRR 202.21[e]; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266 AD2d 199, 200; Williams v Long Is. Coll. Hosp., 147
AD2d 558, 559). However, under certain circumstances and absent a
showing of prejudice to the opposing party, the court may exercise its
discretion to relieve a party of a waiver of the right to conduct a
physical examination (see Barbosa v Capolarello, 52 AD3d 629; Cespuglio v SA Bros. Taxi Corp., 44 AD3d 697, 698; Williams v Long Is. Coll. Hosp., 147 AD2d 559, 559; Kanterman v Palmiotti, 122
AD2d 116). Here, the plaintiffs served a note of issue and statement of
readiness 10 days after the expiration of the time period set forth in
the preliminary conference order for conducting physical examinations
of the plaintiffs and five months prior to the date in said order for
filing a note of issue. Within seven days after the plaintiffs
prematurely filed a note of issue, the defendants designated an
orthopedist and a neurologist to examine the plaintiffs. Thereafter,
the defendants promptly made the instant motion, inter alia, to compel
the plaintiffs to submit to physical examinations. No prejudice to the
plaintiffs has been shown by reason of the short delay, since the case
will be retained on the trial calendar (see Williams v Long Is. Coll. Hosp., 147 AD2d 558, 560; Kanterman v Palmiotti, 122 AD2d 116, 117). Accordingly, the Supreme Court providently exercised its discretion in relieving the defendants of [*2]their
waiver and in granting that branch of the defendants' motion which was
to compel the plaintiffs to submit to physical examinations.

The Supreme Court providently exercised its discretion in
granting that branch of the defendants' motion which was for leave to
extend their time to move for summary judgment to the extent of
permitting such motion no later than 45 days after the completion of
physical examinations, since there was significant discovery
outstanding at the time the note of issue was filed (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Marks v Mode, 53 AD3d 533; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724).

Molyneaux v City of New York, 2009 NY Slip Op 05610 (App. Div., 1st, 2009)

The court improperly granted plaintiffs' CPLR 3126 motion in the
absence of the required affirmation by their attorney that the latter
had conferred with defendants' attorney in a good faith effort to
resolve the issues raised by the motion (22 NYCRR 202.7[a][2]; see Cerreta v New Jersey Tr. Corp.,
251 AD2d 190 [1998]). In addition, there was also no clear showing that
any failure by the City to comply with the conditional order was
willful, contumacious or in bad faith (see Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [2004]).

Defendants represent in their brief that they "recently filed a
stipulation withdrawing [their] appeal from the August [10] 2007 Order"
denying their cross motion seeking, inter alia, renewal of their motion
for summary judgment; such withdrawal apparently was in response to [*2]such
leave having been granted during the pendency of the appeal. The
stipulation, however, is not on file with the Clerk of this Court.
Accordingly, we deem the appeal from the August 10, 2007 order
abandoned, and dismiss it.

The bold is mine.

CPLR R. 3124; CPLR R. 3120; CPLR § 4504(a); CPLR § 4503(a); Privilege

CPLR R. 3124

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

CPLR § 4504. Physician, dentist, podiatrist, chiropractor and nurse
(a) Confidential information privileged

Jackson v Jamaica Hosp. Med. Ctr., 2009 NY Slip Op 02712 (App. Div., 3rd, 2009)

[P]laintiff commenced this second fraud action against defendants in
Clinton County, again alleging that certain purported inconsistencies
between other official documents and defendant's medical records for
the victim, which plaintiff claims were [*2]fraudulently
made, deprived him of the ability to present a viable defense at his
criminal trial. Plaintiff filed an amended notice of discovery (see
CPLR 3120) seeking limited "non-medical information" in defendants'
medical records regarding the victim, relating strictly to "time data"
for the date of the victim's death, namely "time of all calls" to
Jamaica Hospital, "time of arrival" at its emergency room and "time of
death." Plaintiff requested that all confidential and privileged
material be redacted (see CPLR 4504 [a]).

Defendants did not respond to plaintiff's discovery demand, so plaintiff moved to compel a response (see
CPLR 3124). Jamaica Hospital cross-moved to deny that relief. Supreme
Court (Dawson, J.) granted plaintiff's motion and denied Jamaica
Hospital's cross motion. Jamaica Hospital now appeals.

Jamaica Hospital has not demonstrated that res judicata applies
to this motion. Under that doctrine, a prior valid final judgment on
the merits precludes litigation between the same parties of any claim
that was or could have been raised in the prior action (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12 [2008]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]; Kinsman v Turetsky, 21 AD3d 1246, 1246-1247 [2005], lv denied 6 NY3d 702 [2005]). Supreme Court, Queens County merely denied plaintiff's unopposed motion to compel disclosure ^[FN1] due to lack of standing, which is not a determination "on the merits" (see Landau, P.C. v LaRossa, Mitchell & Ross,
11 NY3d at 13-14 and n 3). Likewise, the record does not indicate that
there has been a "final judgment" rendered in the Queens County matter (Parker v Blauvelt Volunteer Fire Co.,
93 NY2d at 347). Thus, Jamaica Hospital has not shown that the Queens
County order precludes plaintiff's present motion to compel discovery.

The documents that plaintiff seeks, as redacted, are not
privileged and must be disclosed. Jamaica Hospital, as the party
objecting to disclosure, bore the burden of proving its assertion that
the material sought is privileged under CPLR 4504 (a) and the federal
Health Insurance Portability and Accountability Act (42 USC § 1320d et seq. [hereinafter HIPAA]; see Koump v Smith, 25 NY2d 287, 294 [1969]; see also Dillenbeck v Hess,
73 NY2d 278, 287 [1989]). The physician-patient privilege "prohibits
disclosure of any information acquired by a physician 'in attending a
patient in a professional capacity, and which was necessary to enable
[the physician] to act in that capacity'" (Dillenbeck v Hess, 73 NY2d at 284, quoting CPLR 4504 [a]; see State of New York v General Elec. Co.,
201 AD2d 802, 802-803 [1994]). The very narrow information sought by
plaintiff regarding when certain events occurred, as documented in the
victim's medical records on the date of his death was not information
necessary to the victim's medical treatment; it was merely documented
facts regarding time data that would be obvious to a layperson (see Williams v Roosevelt Hosp., 66 NY2d 391, 396 [1985]; Henry v Lewis, 102 AD2d 430, 437 [1984] [dates and times of treatment not privileged]; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002]; People v Elysee, 49 AD3d 33, 37-39 [2007], affd 12 NY3d 100 [2009]; Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, 113 AD2d 49, 55 [1985], affd 69 NY2d 232 [1987], cert denied 482 US 928 [1987]). Hence, the information was not privileged under state law.
[*3]

HIPAA regulates disclosure of
"protected health information," which includes "individually
identifiable health information," defined as health information that
"[i]s created or received by a health care provider . . . and [r]elates
to past, present, or future physical or mental health or condition of
an individual[,] the provision of health care to an individual [or
payment therefor]," and identifies the patient or which reasonably
could be so used (45 CFR 160.103; see 42 USC 1320d [6] [B]; Arons v Jutkowitz, 9 NY3d 393,
413 [2007]). The time data sought by plaintiff cannot be characterized
as protected health information, as it has no apparent connection to
the victim's physical condition or medical care. As Jamaica Hospital
failed to demonstrate that the circumscribed redacted time data is
privileged, Supreme Court properly denied its cross motion and granted
plaintiff's motion to compel a response to his amended notice for
discovery.

CPLR § 4503 Attorney
(a) 1 Confidential communication privileged

Straus v Ambinder, 2009 NY Slip Op 02772 (App. Div., 2nd, 2009)

The plaintiff met his burden of proving that the subpoenaed documents were protected by the attorney-client privilege (see CPLR 3101[b], 4503[a]; Matter of Priest v Hennessy, 51
NY2d 62, 69). While a court is not bound by the conclusory
characterizations of a client or his attorney, here, there was no
reason to disregard the attorney's sworn statement regarding the nature
of the engagement of the accounting firm (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 379-380).

In any event, the plaintiff also established that the requested
documents were protected as material prepared by the accountants for
his attorneys in anticipation of litigation (see CPLR 3101[d][2]; Carrafiello v Massachusetts Mut. Life Ins. Co., 266
AD2d 117 ). Where, as here, the party seeking to prevent disclosure
makes the required showing that the documents were prepared [*2]solely
for litigation, the burden shifts to the party seeking disclosure to
establish that there is a substantial need for the materials and they
cannot be obtained elsewhere without undue hardship (see Volpicelli v Westchester County, 102 AD2d 853; Zimmerman v Nassau Hosp., 76
AD2d 921). Inasmuch as the defendant failed to show that he could not
obtain the requested documents without undue hardship, the Supreme
Court properly issued the protective order.

The bold is mine.

CPLR R. 3124 Tax Documents

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

Banigan v Hill, 2008 NY Slip Op 09543 (App. Div., 2d)

In an action, inter alia, to recover damages for breach of contract
and fraud, the plaintiff appeals, as limited by his brief, from so much
of an order of the Supreme Court, Nassau County (Bucaria, J.), dated
February 29, 2008, as granted those branches of the defendant's motion
which were pursuant to CPLR 3124 to compel him to comply with Item No.
1 of the discovery demand dated October 8, 2007, and Item Nos. 1 and 10
of the discovery demand dated October 24, 2007, to the extent of
directing him to produce tax documents for the tax years 2004 through
2006, Item No. 2 of the discovery demand dated October 8, 2007, and
Item Nos. 2, 3, 4, 4(a), 5, 5(a), and 8 of the discovery demand dated
October 24, 2007.

ORDERED that the order is reversed insofar as appealed from, on
the law, with costs, and those branches of the defendant's motion which
were pursuant to CPLR 3124 to compel the plaintiff to comply with Item
No. 1 of the discovery demand dated October 8, 2007, and Item Nos. 1
and 10 of the discovery demand dated October 24, 2007, to the extent of
directing him to produce tax documents for the tax years 2004 through
2006, Item No. 2 of the discovery demand dated October 8, 2007, and
Item Nos. 2, 3, 4, 4(a), 5, 5(a), and 8 of the discovery demand dated
October 24, 2007, are denied.

The Supreme Court improperly granted that branch of the
defendant's motion which sought to produce the plaintiff's tax returns
and related tax documents for the tax years 2004 through 2006. The
defendant failed to meet his burden of showing that the relevant
information possibly contained in the plaintiff's tax documents for the
tax years 2004 through 2006 cannot be obtained from any alternative
source, such as other financial or business records (see Corporate Interiors v Pappas, 293 AD2d 640, 641; Abbene v Griffin, 208 AD2d 483; Consentino v Schwartz, 155 AD2d 640, 641).
[*2]

Furthermore, the Supreme Court
improperly granted that branch of the defendant's motion which was to
compel the plaintiff to produce certain documents sought in Item No. 2
of the demand dated October 8, 2007, and Item Nos. 2, 4(a), 5, and 10
of the demand dated October 24, 2007, since there was no showing that
these documents were in existence at the time the motion was made (see Jonassen v A.M.F., Inc., 104
AD2d 484, 486). Moreover, that branch of the defendant's motion which
sought information under Item Nos. 4 and 5(a) of the demand dated
October 24, 2007, should have been denied as these requests were overly
broad (see Taji Communications, Inc. v Bronxville Towers Apts. Corp., 48 AD3d 551, 552; Ritchie v Carvel Corp., 180 AD2d 786, 789). Finally, the plaintiff complied with Item Nos. 3 and 8 of the demand dated October 24, 2007.

The bold is mine.