Category: CPLR R. 4401

Premature dismissal (3211/3212 was a premature 4401)

CPLR 3212
CPLR 3211
CPLR 4401

Deonarine v Montefiore Med. Ctr., 2014 NY Slip Op 00299 [1st Dept. 2014]

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered July 19, 2012, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 and 3212, and denied defendant's motion to preclude plaintiff's use of his deposition at trial, unanimously affirmed as to the denial of defendant's motion to dismiss, and the appeal therefrom otherwise dismissed, without costs.

The court properly denied the motion to dismiss the complaint inasmuch as it was based solely on defendant's assertion that plaintiff would be unable to make out a prima facie case at trial by reason of his anticipated "unavailability to testify as a result of his imminent deportation . . ." Accordingly the motion was actually a prematurely made motion for judgment pursuant to CPLR 4401, which has to await the close of plaintiff's case at trial even if plaintiff's ultimate success in the action is improbable (see Cass v Broome County Coop. Ins. Co., 94 AD2d 822, 823 [3rd Dept 1983]). The court's denial of defendant's motion to preclude was effectively an evidentiary ruling made in advance of trial and, as such, is not appealable (see Balcom v Reither, 77 AD3d 863, 864 [2nd Dept 2010]). We have considered defendant's remaining contentions and find them to be without merit.

Emphasis is mine.

The 4401 and 3025

CPLR  R. 4401 Motion for judgment during trial

CPLR R 3025 Amended and supplemental pleadings

Pitre v City of New York, 2012 NY Slip Op 00946 (2nd Dept., 2012)

The plaintiffs did not identify in their complaint or verified bill of particulars the specific sections of the Industrial Code relied upon in opposition to the defendants' motions. Additionally, the plaintiffs did not move to amend their pleadings pursuant to CPLR 3025(b) or (c). Nearly 10 years elapsed from the time the plaintiffs served their verified bill of particulars until they sought at trial to rely upon the contested Industrial Code sections, and the plaintiffs offered no explanation as to why they had not earlier moved to amend their pleadings. Under these circumstances, the Supreme Court properly granted the defendants' motions pursuant to CPLR 4401 for judgment as a matter of law dismissing the plaintiffs' Labor Law § 241(6) cause of action (see Owen v Commercial Sites, 284 AD2d 315; Smith [*2]v Hercules Constr. Corp., 274 AD2d 467, 468).

 


Kid’s K

CPLR  R. 4401 Motion for judgment during trial

Al-Shahrani v Hudson Auto Traders, Inc., 2011 NY Slip Op 08546 (2nd Dept., 2011)

"A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted only when the trial court determines that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party'" (Hoberg v Shree Granesh, LLC, 85 AD3d 965, 966, quoting Szczerbiak v Pilat, 90 NY2d 553, 556). "In making this evaluation, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'" (Hoberg v Shree Granesh, LLC, 85 AD3d at 966, quoting Szczerbiak v Pilat, 90 NY2d at 556). Applying these principles here, the evidence presented by the plaintiff provided a rational basis upon which the trier of fact could have concluded that the plaintiff was an infant when he entered into the subject contract with the defendant and, therefore, that the contract was voidable at the plaintiff's election (see Joseph v Schatzkin, 259 NY 241, 243; Leasing Serv. Corp. v Vita Italian Rest., 171 AD2d 926, 927; see also 66 NY Jur 2d, Infants and Other Persons Under Legal Disability § 7). We also conclude that the plaintiff made a demand before commencing this action for disaffirmance of the contract and return of the money paid to the defendant, as well as tendering to the defendant the vehicle which was the subject of the agreement, and that, by commencing this action, he unequivocally manifested his intention to disaffirm the contract (see Nathan v Karp, Inc., 214 App Div 490, 491-492). Contrary to the Supreme Court's determination, the evidence before the Supreme Court did not establish, as a matter of law, that the contract was one for "necessaries" (see generally Sternlieb v Normandie Natl. Sec. Corp., 263 NY 245; Braham & Co., Inc. v Zittel, 232 App Div 406, 407; 66 NY Jur 2d, Infants and Other Persons Under Legal Disability § 20). Furthermore, contrary to the Supreme Court's determination, the plaintiff's mother did not have the right or authority to ratify the plaintiff's contract (see Kaufman v American Youth Hostels, 13 Misc 2d 8, 15, mod on other grounds 6 AD2d 223; see 66 NY Jur 2d, Infants and Other Persons Under Legal Disability § 7).

The parties' remaining contentions either are improperly raised for the first time on appeal, are without merit, or need not be addressed in light of our determination.

Accordingly, the judgment must be reversed, the motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint denied, the complaint reinstated, and the matter remitted to the Supreme Court, Putnam County, for a new trial.

Premature 4401

CPLR R. 4401

Bodge v Red Hook Senior Hous. Dev. Fund Co., Inc., 2011 NY Slip Op 05644 (2nd Dept. 2011)

Pursuant to CPLR 4401, "[a]ny party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue." At the time the plaintiff moved pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1), the defendants had not completed their case. Therefore, the plaintiff's motion was premature, and the plaintiff never renewed his motion (see DeWall v Owl Homes of Victor, 213 AD2d 977; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4401:4, C4401:5). 

The plaintiff's contention that the jury's verdict is inconsistent is not preserved for appellate review, since he did not raise that issue before the jury was discharged (see Rivera v MTA Long Is. Bus, 45 AD3d 557, 557-558; Delacruz v Galaxy Elec., 300 AD2d 278).

3101, Disclosure, Experts, and Expert rebuttal not required (last decision)

CPLR  R. 4401 Motion for judgment during trial

CPLR § 3101 Scope of disclosure

CPLR § 3103

Motion not made on notice

CPLR R. 3108 Written questions; when permitted

Botwinik v Moseson, 2011 NY Slip Op 04809 (App. Div., 1st 2011)

Judgment, Supreme Court, Nassau County (F. Dana Winslow, J.), entered on or about September 28, 2009, in favor of defendants, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on or about May 18, 2009, which granted defendants' oral motion in limine to preclude the testimony of plaintiff's expert and dismiss this medical malpractice action, unanimously reversed, on the law without costs, the motion denied, and the complaint reinstated.

In making their oral motion, after the jury was empaneled and before opening arguments, defendants argued that plaintiff's proposed expert, though a highly qualified registered nurse, lacked the necessary qualifications to give a medical opinion as to the requisite standard of informed consent (see CPLR 4401-a; Orphan v Pilnik, 15 NY3d 907 [2010]).

In opposition, plaintiff relied partially upon the deposition testimony of the defendant doctor which was not before the court, and the CPLR 3101(d) disclosure of the nurse's opinion. In addition, plaintiff orally cross-moved to substitute the testimony of a medical doctor for the testimony of the nurse, if the court ruled that plaintiff's offer was inadequate to establish the requisite prima facie claim. Apparently the court gave plaintiff's counsel a break to research the issue of the nurse's qualification to give an opinion under New York law, but did not read the deposition testimony. The court granted defendants' in limine motion and sub silentio denied plaintiff's.

CPLR 4401-a states that "[a] motion for judgment at the end of the plaintiff's case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent
if the plaintiff has failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent" (emphasis added).

The grant of dismissal pursuant to CPLR 4401-a was an abuse of discretion, given that the timing of defendants' oral application was not at the end of plaintiff's case, the record on which the court ruled was sparse and the court failed to consider plaintiff's offer to substitute a medical doctor's opinion for the nurse's (see Jean-Louis v City of New York, 60 AD3d 737, 738  [2009] [court erred in dismissing the complaint before the plaintiff had completed her proof]; Greenbaum v Hershman, 31 AD3d 607 [2006] ["plaintiff should have been afforded the opportunity to conclude her case" and present expert medical testimony regarding the qualitative insufficiency of her consent]).

Because defendants chose to move orally as opposed to making a formal motion on notice, plaintiff had little opportunity to develop a full record and be heard. Moreover, courts favor disposition of cases on the merits rather than on oral application made after a jury is impaneled and waiting (see Murray v Brookhaven Mem. Hosp. Med. Ctr, 73 AD3d 878, 879 [2010]; Williams v Naylor, 64 AD3d 588, 589 [2009]).

Accordingly, we reverse, deny defendants' motion and reinstate the complaint.

Coventry Real Estate Advisors, L.L.C. v Developers Diversified Realty Corp., 2011 NY Slip Op 04750 (App. Div., 1st 2011)

The motion court providently exercised its discretion in denying plaintiffs' motion for the issuance of commissions pursuant to CPLR 3108, since they failed to demonstrate that commissions were "necessary or convenient" (CPLR 3108; Reyes v Riverside Park Community [Stage I], Inc., 59 AD3d 219, 219 [2009]). The motion court stated that plaintiffs could submit new papers if they wanted commissions for out-of-state depositions on a topic other than uncharged crimes; hence, the current appeal concerns only uncharged crimes. Although "a witness may be cross-examined [at trial] with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility" (Badr v Hogan, 75 NY2d 629, 634 [1990]), here, due to the affidavits plaintiffs obtained, they already have a good-faith basis to cross-examine an executive of one of the defendants about an uncharged crime. If the executive denies the uncharged crime, plaintiffs will not be allowed to use extrinsic evidence solely to impeach his credibility (see People v Schwartzman, 24 NY2d 241, 245 [1969], cert denied 396 US 846 [1969]).

We reject plaintiffs' argument that they can use evidence of the uncharged crime and a cover-up thereof to show intent for their fraud claim.

Plaintiffs failed to preserve their argument that the motion court should have considered a protective device pursuant to CPLR 3103, rather than deny its motion in its entirety, and we decline to consider it.

Because the first four pages of the anonymous document concern the uncharged crime, for the reasons stated above, the motion court providently exercised its discretion in denying plaintiff's motion to use those pages in discovery. The pages are also not discoverable because they are privileged (see CPLR 3101[b],[c]; 4503). However, the last page is not privileged, and it has relevance beyond the uncharged crime since it alleges that an executive of one of the defendants ordered a "data dump" on his computer. Indeed, plaintiffs may use the last page to discover if the executive deleted from his computer material relevant to this case. Accordingly, plaintiffs are entitled to use the last page in discovery.

Accent Collections, Inc. v Cappelli Enters., Inc., 2011 NY Slip Op 04609 (App. Div., 2nd 2011)

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The phrase "material and necessary" should be interpreted liberally, and the test is one of "usefulness and reason" (Kooper v Kooper, 74 AD3d 6, 10 [internal quotation marks omitted]). Unlimited disclosure, however, is not required (see Spohn-Konen v Town of Brookhaven, 74 AD3d 1049; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460), and the rules provide that the court may issue a protective order "denying, limiting, conditioning or regulating the use of any disclosure device" to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103[a]).

Generally, the supervision of disclosure is left to the broad discretion of the trial court, which must balance the parties' competing interests (see Kooper v Kooper, 74 AD3d at 17; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460). On appeal, "this Court has the authority to review a discovery order to determine whether the trial court has abused its discretion as a matter of law, or in the absence of abuse, has exercised its discretion improvidently" (Kooper v Kooper, 74 AD3d at 17).

A motion to compel responses to demands and interrogatories is properly denied where the demands and interrogatories seek information which is irrelevant, overly broad, or burdensome (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Paradis v F.L. Smithe Mach. Co., Inc., 25 AD3d 594). While the failure of a party to challenge the propriety of a notice for discovery and inspection within the time prescribed by the CPLR forecloses inquiry into the propriety of the information sought, there is an exception with regard to requests that are palpably improper (see Otto v Triangle Aviation Servs., 258 AD2d 448; see also During v City of New Rochelle, N.Y., 55 AD3d 533; Velez v South Nine Realty Corp., 32 AD3d 1017; Cipriano v Righter, 100 AD2d 923).

Here, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff's motion which were to compel the defendants to produce responsive documents and information in response to the plaintiff's interrogatories one through five and demands one through four, and in denying that branch of the motion which sought an order deeming the defendants' objections waived, as the demands and interrogatories at issue were palpably improper, because they sought irrelevant information, or were overbroad and/or burdensome (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Velez v South Nine Realty Corp., 32 AD3d 1017; Otto v Triangle Aviation Servs., 258 AD2d 448).

The Supreme Court providently denied that branch of the plaintiff's motion which sought costs and attorneys' fees, as the plaintiff failed to demonstrate that the defendants' conduct was frivolous (see 22 NYCRR 130-1.1[c]), and also providently denied those branches of the motion which were to deem the issues resolved in favor of the plaintiff and/or strike the defendants' second amended answer, since there was no showing that the defendant's conduct was willful and contumacious (see Nieves v City of New York, 35 AD3d 557; Brandes v North Shore Univ. Hosp., 22 AD3d 778; Jenkins v City of New York, 13 AD3d 342; Fellin v Sahgal, 268 AD2d 456).

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

Plaintiffs were not required to produce an expert to refute defendant's expert's conclusions (see e.g. Hendricks v Baksh, 46 AD3d 259 [2007]).

 

No 4401 before close of plaintiff’s evidence

CPLR R. 4401 Motion for judgment during trial

Montano v Spagnuolo, 2011 NY Slip Op 01445 (App. Div., 2nd 2011)

After granting the motion of the defendant Stuart Styles (hereinafter the defendant), made during trial, for a new trial, in effect, pursuant to CPLR 4402, the Supreme Court granted the defendant's motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against him. In addition to the fact that the Supreme Court had previously granted the defendant's motion for a new trial, the motion, in effect, pursuant to CPLR 4401 was made before the close of the plaintiffs' evidence. Accordingly, that motion should not have been entertained (see CPLR 4401; Canteen v City of White Plains, 165 AD2d 856, 857; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d 196, 197; Balogh v H.R.B. Caterers, 88 AD2d 136, 141; Levy v Goldman, 252 App Div 781).

Judgment as a matter of law CPLR 4401 & 4404

CPLR  R. 4401 Motion for judgment during trial

CPLR  R. 4404 Post-trial motion for judgment and new trial

Adler v Bayer, 2010 NY Slip Op 07300 (App. Div., 2nd 2010)

"A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nomoving party" (Hamilton v Rouse, 46 AD3d 514, 516; Tapia v Dattco, Inc., 32 AD3d 842, 844). In considering such a motion, "the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556).