Category: CPLR

4511(b)

Marshall v Fleming, 2018 NY Slip Op 03441 [1st Dept. 2018]

We take judicial notice of the subsequent decisions in the Australian action, the contents of which are undisputed (see CPLR 4511[b]; Matter of Kevin McK. v Elizabeth A.E., 111 AD3d 124, 133 [1st Dept 2013]). The decisions reflect that on August 24, 2017, the New South Wales Supreme Court (Payne, J.), issued a posttrial verdict in defendants' favor, dismissed the amended statement of claim, and directed plaintiffs to pay defendants' costs of the proceedings (see Marshall v Fleming [2017] NSWSC 1107). By order dated December 5, 2017, Justice Payne, inter alia, directed plaintiffs to pay defendants' costs of the trial, 50% of the costs of defendants' September 7, 2017 motion, and the costs of defendants' October 23, 2017 motion (see Marshall v Fleming, [No 2] [2017] NSWSC 1679).

 

Venue

Janis v Janson Supermarkets LLC, 2018 NY Slip Op 03333 [1st Dept. 2018]

Wakefern, a foreign corporation, submitted a copy of its application for authorization to conduct business filed with the Secretary of State, in which it identified New York County as "[t]he county within this state where its office is to be located" (Business Corporation Law § 1304[a][5]). Wakefern's designation of New York County in its application is controlling for venue purposes, even if it does not actually have an office in New York County (see Crucen v Pepsi-Cola Bottling Co. of N.Y., Inc., 139 AD3d 538 [1st Dept 2016]; Shetty v Volvo Cars of N. Am., LLC, 38 AD3d 202 [1st Dept 2007]; Job v Subaru Leasing Corp., 30 AD3d 159 [1st Dept 2006]; CPLR 503[c]).

Kochan v Target Corp., 2018 NY Slip Op 03445 [1st Dept. 2018]

Supreme Court did not improvidently exercise its discretion in granting Target's motion to change venue to Suffolk County even though plaintiff properly placed venue in New York County based upon Target's principal place of business at the time the action was commenced (see CPLR 503[a], [c]). The motor vehicle accident happened in Suffolk County, plaintiffs and codefendants live in that county, the decedent received her medical treatment there (see Lopez v Chaliwit, 268 AD2d 377 [1st Dept 2000]). Target also submitted the affidavits of two Suffolk County police officers, who averred that they were involved in the investigation including interviewing witnesses at the accident location and that they would be inconvenienced by having to travel to New York County because it would cause them to be absent from their police duties for a full day (see Kennedy v C.F. Galleria at White Plains, 2 AD3d 222, 223 [1st Dept 2003]).

That the police officers signed affidavits in favor of the motion to change venue establishes that they were aware of the action and demonstrates that they are willing to testify at trial. It was proper for the motion court to consider the police officers' convenience, because their testimony regarding their investigation as to how the accident happened bears on liability (see Hoogland v Transport Expressway, Inc., 24 AD3d 191 [1st Dept 2005]). Furthermore, the police officers' affidavits are not insufficient because they do not set forth their home addresses, since it is undisputed that they work in Suffolk County (see

Gorodetsky v Bridgewater Wholesalers, Inc., 2018 NY Slip Op 03122 [2d Dept. 2018]

Here, the defendants failed to disclose the addresses of all but one of the prospective witnesses, made only conclusory statements that the prospective witnesses would be inconvenienced, and failed to establish the manner or extent to which those witnesses would be inconvenienced (see Ambroise v United Parcel Serv. of Am. Inc., 143 AD3d at 928; Matter of Supplier Distribution Concepts, Inc., 80 AD3d 869, 871). With regard to those witnesses who were New York State police officers, while "the convenience of local government officials, such as police officers, is of paramount importance because they should not be kept from their duties unnecessarily" (Lafferty v Eklecco, LLC, 34 AD3d 754, 755), here, only conclusory statements, without any details, were provided as to how those witnesses would be inconvenienced. As such, these statements were insufficient to establish that those witnesses would be inconvenienced if venue were not changed.

3215(c) and reasonable excuse

Ibrahim v Nablus Sweets Corp., 2018 NY Slip Op 03515 [2d Dept. 2018]

The Supreme Court providently exercised its discretion in rejecting the plaintiff's excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff's excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852; Baruch v Nassau County, 134 AD3d 658, 659; Mattera v Capric, 54 AD3d 827, 828). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff's file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate's affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto. Since the plaintiff failed to demonstrate a reasonable excuse for her delay in moving for a default judgment, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 2004 for an extension of time to move for a default judgment (see T. Mina Supply, Inc. v Clemente Bros. Contr. Corp., 139 AD3d 1038).

No cross-motion, no problem

Silvering v Sunrise Family Med., P.C., 2018 NY Slip Op 03556 [2d Dept. 2018]

To the extent the Supreme Court concluded that it lacked discretion to consider the plaintiffs' application pursuant to CPLR 306-b to extend their time to serve the defendant, which was not presented in a proper cross motion pursuant to CPLR 2215, we disagree. Although "a party seeking relief in connection with another party's motion is, as a general rule, required to do so by way of a cross motion," courts "retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215" (Fried v Jacob Holding, Inc., 110 AD3d 56, 64-65; see Smulczeski v Smulczeski, 128 AD3d 671, 672).

Forum Non Con requirments

Gorodetsky v Bridgewater Wholesalers, Inc., 2018 NY Slip Op 03122 [2d Dept. 2018]

A party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses and the ends of justice will be promoted by the change (see CPLR 510[3]; Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d 927, 928; Lapidus v 1050 Tenants Corp., 94 AD3d 950, 950). In doing so, the moving party must set forth (1) the names, addresses, and occupations of the prospective witnesses, (2) the facts to which the witnesses will testify at trial, so that the court may assess whether the proposed evidence is necessary and material, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d at 928; M.I. v Trinity-Pawling Sch., 125 AD3d 615, 615).

Here, the defendants failed to disclose the addresses of all but one of the prospective witnesses, made only conclusory statements that the prospective witnesses would be inconvenienced, and failed to establish the manner or extent to which those witnesses would be inconvenienced (see Ambroise v United Parcel Serv. of Am. Inc., 143 AD3d at 928; Matter of Supplier Distribution Concepts, Inc., 80 AD3d 869, 871). With regard to those witnesses who were New York State police officers, while "the convenience of local government officials, such as police officers, is of paramount importance because they should not be kept from their duties unnecessarily" (Lafferty v Eklecco, LLC, 34 AD3d 754, 755), here, only conclusory statements, without any details, were provided as to how those witnesses would be inconvenienced. As such, these statements were insufficient to establish that those witnesses would be inconvenienced if venue were not changed.

John Doe–CPLR 1024

CPLR 1024: Unknown parties

A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.

Markov v Stack's LLC (Delaware), 2018 NY Slip Op 03238 [1st Dept. 2018]

The motion court properly dismissed the complaint on the ground that it was served after the statutory limitations period had expired. Plaintiff's claims arose on January 14, 2008. The original complaint in this action, which was filed on January 6, 2014 (just days before the six-year statute of limitations expired), did not name Stack's LLC as a defendant, nor did it name defendant Stack's LLC (Delaware). The amended complaint, which for the first time named Stack's LLC (Delaware) as a defendant, was not filed until January 24, 2014 — more than a week after the statute had run. Plaintiff cannot properly rely on CPLR 1024 as a shield from the statute of limitations. Even assuming that the appellation "John Doe" referred to a corporation rather than a natural person, the complaint's description of the John Doe defendant was not described in such a way as to fairly apprise Stack's LLC (Delaware) that it was an intended defendant (see Bumpus v New York City Tr. Auth., 66 AD3d 26, 29—30 [2d Dept 2009]; see Tucker v Lorieo, 291 AD2d 261, 262 [1st Dept 2002]). Thus, the inadequate description rendered the action jurisdictionally defective (Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1165 [2d Dept 2010]).

Can’t grant leave to renew, while denying a motion, all willy nilly like

Foo-Lu Co. v Rojas, 2018 NY Slip Op 02772 [2d Dept 2018]

The Supreme Court, upon denying the plaintiffs' and Chao's initial motion for summary judgment, improvidently exercised its discretion by, in effect, granting the moving parties leave to renew. The defect in the initial motion was not merely technical but substantive, inasmuch [*2]as the moving parties failed, without explanation, to submit evidence, in admissible form, establishing, inter alia, their ownership of the subject mortgage note or the existence of Rojas' default. Such evidence could, and should, have been submitted on the original summary judgment motion (see Vinar v Litman, 110 AD3d 867), and sufficient cause was not shown to warrant entertaining a second motion (cf. Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39). Therefore, the order dated April 7, 2015, must be modified accordingly, and the provision of the order dated November 23, 2015, upon renewal, granting the second summary judgment motion must be vacated. In light of our determination with respect to the order dated April 7, 2015, the appeal from that portion of the order dated November 23, 2015, must be dismissed.

The Supreme Court also erred in awarding summary judgment to Fong. It is undisputed that Fong's motion was untimely, having been made 309 days after the filing of the note of issue, or 189 days after the expiration of the 120-day statutory deadline (see CPLR 3212[a]; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866; Giambona v Hines, 104 AD3d 811). Even assuming that the court granted an oral application by Fong for leave to file the late motion, as Fong's counsel represented in his papers, such determination would have been an improvident exercise of discretion under the circumstances presented, since leave can be granted only upon a showing of good cause "for the delay in making the motion" (Brill v City of New York, 2 NY3d 648, 652), and no such showing appears in the record (see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; cf. Matter of Gilmore, 131 AD3d 1058). Fong's failure to establish good cause for his delay warranted denial of the motion, "without consideration of the merits thereof" (Jones v City of New York, 130 AD3d 686, 687; see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; Carrasco v Weissman, 120 AD3d 534, 536; Giambona v Hines, 104 AD3d at 812).

The bold is mine.

Overbroad Discovery

Doe v Bronx Preparatory Charter Sch., 2018 NY Slip Op 02898 [1st Dept. 2018]

The court providently exercised its discretion in declining to impose sanctions on plaintiffs or to compel further disclosure of the infant plaintiff's social media and cell phone history, since defendant failed to submit papers necessary to determine whether plaintiffs had not complied with a prior discovery order (see Nyadzi v Ki Chul Lee, 129 AD3d 645 [1st Dept 2015]; Ventura v Ozone Park Holding Corp., 84 AD3d 516, 517—518 [1st Dept 2011]). Further, there was no showing that plaintiffs wilfully failed to comply with any discovery order, since they provided access to the infant plaintiff's social media accounts and cell phone records for a period of two months before the date on which she was allegedly attacked on defendant's premises to the present, which was a reasonable period of time. Defendant's demands for access to social media accounts for five years prior to the incident, and to cell phone records for two years prior to the incident, were overbroad and not reasonably tailored to obtain discovery relevant to the issues in the case (see Forman v Henkin, 30 NY3d 656, 665 [2018]).

120 days, give or take

Foo-Lu Co. v Rojas, 2018 NY Slip Op 02772 [2d Dept. 2018]

The Supreme Court also erred in awarding summary judgment to Fong. It is undisputed that Fong's motion was untimely, having been made 309 days after the filing of the note of issue, or 189 days after the expiration of the 120-day statutory deadline (see CPLR 3212[a]; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866; Giambona v Hines, 104 AD3d 811). Even assuming that the court granted an oral application by Fong for leave to file the late motion, as Fong's counsel represented in his papers, such determination would have been an improvident exercise of discretion under the circumstances presented, since leave can be granted only upon a showing of good cause "for the delay in making the motion" (Brill v City of New York, 2 NY3d 648, 652), and no such showing appears in the record (see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; cf. Matter of Gilmore, 131 AD3d 1058). Fong's failure to establish good cause for his delay warranted denial of the motion, "without consideration of the merits thereof" (Jones v City of New York, 130 AD3d 686, 687; see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; Carrasco v Weissman, 120 AD3d 534, 536; Giambona v Hines, 104 AD3d at 812).

Reeps v BMW of N. Am., LLC, 2018 NY Slip Op 02907 [1st Dept. 2018]

Prior court orders and stipulations between the parties show that the parties, with the court's consent, charted a procedural course that deviated from the path established by the CPLR and allowed for defendants' filing of this round of summary judgment motions more than 120 days after the filing of the note of issue (see Corchado v City of New York, 64 AD3d 429 [1st Dept 2009]). Thus, the motions were timely, and we remand the matter to the motion court for a full consideration of their merits (see Fomina v DUB Realty, LLC, 156 AD3d 539 [1st Dept 2017]).

In considering the merits, the court should consider plaintiff's new and recast expert affidavits submitted in opposition to the motions, which were first filed in 2016 (see CPLR 3212[b]), after holding a hearing in accordance with Frye v United States (293 F 1013 [1923]) to determine whether the expert affidavits on exposure and general causation (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]) are adequately supported in the medical and scientific literature.

Documentary evidence

Sims v Prom Realty Co., LLC, 2018 NY Slip Op 02822 [2d Dept. 2018]

"In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997 [internal quotation marks omitted]; see Suchmacher v Manana Grocery, 73 AD3d 1017, 1017; Fontanetta v John Doe 1, 73 AD3d at 86).