Category: CPLR

discovery and a retaining lien

Andrade v Perez, 2018 NY Slip Op 02126 [1st Dept 2018]

The motion court should have granted plaintiffs' motion to vacate the sua sponte order directing them to produce disclosure to defendants, as defendants' answer had been stricken by prior order of the court. Accordingly, defendants were not entitled to any further discovery, including discovery in preparation for an inquest (see Servais v Silk Nail Corp., 96 AD3d 546, 547 [1st Dept 2012]).

To the extent the motion court ordered plaintiffs to provide disclosure already submitted to defendants' former counsel, a different result is not warranted. Assuming defendants are unable to access their case file due to a retaining lien, the court improperly facilitated a "work around" of such lien (see Law Firm of Ravi Batra, P.C. v Rabinowich, 77 AD3d 532 [1st Dept 2010]; Warsop v Novik, 50 AD3d 608 [1st Dept 2008]; see also Artim v Artim, 109 AD2d 811, 812 [2d Dept 1985]). If there is no retaining lien, defendants should seek an order to compel former counsel's production of the discovery.

3215(c)

HSBC Bank USA, N.A. v Seidner, 2018 NY Slip Op 02202 [2d Dept. 2018]

In the usual case, if a request for judicial intervention in a matter subject to mandatory settlement conferences is filed within the one-year deadline imposed by CPLR 3215(c), the time thereafter to move for a default judgment is tolled while settlement conferences are pending (see 22 NYCRR 202.12-a[c][7]; U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852). Here, however, it is undisputed that this action was not subject to mandatory settlement conferences (see 22 NYCRR 202.12-a[a]) and, in any event, the matter was not transferred to the settlement conference part until well after the deadline of CPLR 3215(c) had passed.

“No evidentiary showing of merit is required under CPLR 3025(b)”

1259 Lincoln Place Corp. v Bank of N.Y., 2018 NY Slip Op 02177 [2d Dept 2018]

Here, the court denied leave to amend the answer based upon its determination that the defendant had failed to lay a proper foundation, under the business records exception to the hearsay rule, for the admission of a document which allegedly demonstrated that the defendant had paid real estate taxes on the subject property. However, "[n]o evidentiary showing of merit is required under CPLR 3025(b)" (Lucido v Mancuso, 49 AD3d at 229). Since the defendant's proposed counterclaim was not palpably insufficient or patently devoid of merit, and since no prejudice or surprise would result from granting leave to amend the answer, the branch of the defendant's cross motion seeking that relief should have been granted.

CPLR 4536

CPLR 4536. Proof of writing by comparison of handwriting

Al-Kabyalle v Ali, 2018 NY Slip Op 01556 [1st Dept 2018]

On a prior motion, plaintiff submitted an affidavit stating that his signature on a Unanimous Written Consent of the Directors of New Brothers Realty Corp. had been forged. On the instant motion, defendant Ali submitted the affidavit of a handwriting expert, who said he was virtually certain that the signature on the consent was by the same person who signed seven exemplars. However, the expert did not describe the exemplars, nor are they in the record. Under these circumstances, Ali failed to show that plaintiff's signature was genuine (see e.g. CPLR 4536; Kanterakis v Minos Realty I, LLC, 151 AD3d 950, 952 [2d Dept 2017]).

Serve that subpoena right

Whitfield v Q-Boro Books, 2018 NY Slip Op 01552 [1st Dept 2018]

CPLR 2303(a) provides, in relevant part, that "a subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons." Here, plaintiff admitted that he did not properly serve Chin with the trial subpoena. Because service was improper, there was no lawful judicial order in effect for Chin to disobey (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]).

Late Amendment

Federal Ins. Co. v Lakeville Pace Mech. Inc., 2018 NY Slip Op 01544 [1st Dept 2018]

Defendant waited more than two years to move to amend its answer to include the statute of limitations defense, arguing that plaintiff's construction negligence claim, with a three-year statute of limitations (CPLR 214[4]), was untimely.

Moreover, defendant made its motion almost immediately after the expiration of the six-year limitations period (by defendant's calculation) in which plaintiff could have brought the same action as a breach of contract, even though all of the facts relied upon by defendant were known to it at the time it filed its original answer. Plaintiff, relying on defendant's waiver of any statute of limitations defense (CPLR 3211[e]), was prejudiced by the loss of the opportunity to interpose a timely breach of contract claim, which it could have done "had the original pleading contained what the [proposed] amended one wants to add" Armstrong v Peat, Marwick, Mitchell & Co. , 150 AD2d 189, 190 [1st Dept 1989]).

The motion court properly concluded that these circumstances warranted denial of defendant's motion (see CPLR 3025[b]).

CPLR 3117(a)(2)-(a)(3)

CPLR 3117. Use of depositions

International Fin. Corp. v Carrera Holdings Inc., 2018 NY Slip Op 01541 [1st Dept. 2018]

The court erred in concluding that Carrera S.P.A.'s principal Vivek Jacob's deposition testimony was admissible under CPLR 3117(a)(2), which permits deposition testimony of an officer of a party for use "by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence." Carrera, which offered the testimony in evidence, was not a party adverse to Jacob at the time when he was deposed or at trial. Nevertheless, the court correctly concluded that Jacob's testimony was admissible under CPLR 3117(a)(3)(I) because he was deceased by the time of trial. To the extent portions of Jacob's testimony were not based on his personal knowledge of the Tajik government's interference with operations at Giavoni (see Wathne Imports, Ltd. v PRL USA, Inc., 125 AD3d 434 [1st Dept 2015]; Eustaquio v 860 Cortlandt Holdings, Inc., 95 AD3d 548 [1st Dept 2012]), there is other evidence to support those facts, and plaintiff was not prejudiced by any error in admitting that testimony (see CPLR 2002).

Plaintiff waived any objection to defendants' failure to produce relevant financial documents, the existence of which it was aware of as early as 2009 (well before trial in 2015), by filing its note of issue and certificate of readiness (see Fernandez v City of New York, 84 AD3d 595 [1st Dept 2011]).

Reargue: CPLR 2221

Dogwood Residential, LLC v Stable 49, Ltd., 2018 NY Slip Op 01574 [1st Dept 2018]

The court providently exercised its discretion in granting plaintiffs leave to reargue although they failed to comply with the requirement of CPLR 2221(f) that in a combined motion for reargument and renewal each item of relief be separately identified (see generally Corporan v Dennis, 117 AD3d 601 [1st Dept 2014]; see also GMAC Mtge., LLC v Spindelman, 136 AD3d 1366, 1367 [4th Dept 2016]). The court also providently exercised its discretion in considering a legal argument not expressly made by plaintiffs in opposition to defendant's motion, since the issue could not have been avoided if it had been raised at that stage (see generally Harrington v Smith, 138 AD3d 548 [1st Dept 2016]; see also Rochester v Quincy Mut. Fire Ins. Co., 10 AD3d 417, 418-419 [2d Dept 2004]).

Undertaking CPLR 6312

CPLR 6312(b)

Suttongate Holdings Ltd. v Laconm Mgt. N.V., 2018 NY Slip Op 01654 [1st Dept 2018]

The motion court should, however, have ordered plaintiff to post an additional undertaking, rather than applying the undertaking posted in connection with the prior preliminary injunction order. CPLR 6312(b) requires that "prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court." Moreover, the undertaking must be "rationally related to defendants' potential damages should the preliminary injunction later prove to have been unwarranted" (Peyton v PWV Acquisition LLC, 101 AD3d 446, 447 [1st Dept 2012]). According to defendants' own affidavit, the cost of obtaining mortgages on the 18 properties would be $31,000. Thus, an additional undertaking in the amount of $50,000 is appropriate.