Category: CPLR

Ratificaton

Dinhofer v Medical Liab. Mut. Ins. Co., 92 AD3d 480 (1st Dept., 2012)

Plaintiff's claims against the MLMIC defendants of fraud, deceitful business practices, and breach of their duty to defend him in good faith are barred by the doctrine of equitable estoppel. The MLMIC defendants established that in reasonable reliance upon plaintiff's execution of the consent to settle the underlying medical malpractice action they made a prejudicial change in their position by, inter alia, disbanding the advisory committee that, pursuant to the policy, would have resolved the matter of settlement absent plaintiff's consent, and paying to settle the claim against him (see River Seafoods, Inc. v JPMorgan Chase Bank, 19 AD3d 120, 122 [2005]). These claims are also barred by the doctrine of ratification, since plaintiff failed to act promptly to seek rescission of the consent (see Matter of Guttenplan, 222 AD2d 255, 257 [1995], lv denied 88 NY2d 812 [1996]), and indeed accepted and retained the benefits of the settlement (see Napolitano v City of New York, 12 AD3d 194 [2004]).

5501 and appellate procedure

CPLR § 5501 Scope of review

Retta v 160 Water St. Assoc., L.P., 2012 NY Slip Op 03092 (1st Dept., 2012)

An appeal must be taken "within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry" (CPLR 5513[a]). The time period for filing a notice of appeal is nonwaivable and jurisdictional (see Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637 [1973]; Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417 [2007]).

Pursuant to CPLR 5501(a)(1), "[a]n appeal from a final judgment brings up for review . . . any non-final judgment or order which necessarily affects the final judgment" (see also Siegmund Strauss, Inc. v East 149th Realty Corp., 81 AD3d 260, 267 [2010], lv granted in part, dismissed in part 17 NY3d 936 [2011]). "[W]hen an appeal from an intermediate order is perfected together with an appeal from a final judgment, the appeal from the intermediate order must be dismissed and any error alleged, to the extent that it affects the final judgment, may be reviewed upon the appeal from the final judgment" (Chase Manhattan Bank, N.A. v Roberts & [*2]Roberts, 63 AD2d 566, 567 [1978]).

Gregware v City of New York, 2012 NY Slip Op 02578 (1st Dept., 2012)

Defendant Burtis Construction Co. did not oppose Romero and Romero-Valerezo's and Hasan and Dochenka Taxi's motions, and therefore may not appeal from the order that decided them (see Tortorello v Carlin, 260 AD2d 201, 205 [1999]).

3211(b) dismiss affirmative defenses

3211(b)

South Point, Inc. v Redman, 2012 NY Slip Op 03165 (2nd Dept., 2012)

The Supreme Court erred in determining that the doctrine of law of the case precluded the granting of the plaintiff's motion pursuant to CPLR 3211(b) to dismiss the affirmative defense asserted by the defendant Helen M. Prescod. The doctrine of law of the case "applies to determinations which were necessarily resolved on the merits in [a] prior order" (Hampton Val. Farms, Inc. v Flower & Medalie, 40 AD3d 699, 701; see Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294). Here, contrary to the Supreme Court's determination, the prior order at issue did not address the merits of Prescod's affirmative defense (see Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1294).

Nevertheless, we affirm the denial of the plaintiff's motion to dismiss Prescod's affirmative defense, albeit on a different ground from that relied upon by the Supreme Court (see [*2]Montalvo v Nel Taxi Corp., 114 AD2d 494, 494; see also Menorah Nursing Home v Zukov, 153 AD2d 13, 19). "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211[b]). Upon such a motion, the movant bears the burden of demonstrating that a defense is not stated or is without merit as a matter of law (see Butler v Catinella, 58 AD3d 145, 148; Vita v New York Waste Servs., LLC, 34 AD3d 559, 559). The nonmoving defendant is "entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743; see Butler v Catinella, 58 AD3d at 148).

Here, the plaintiff failed to satisfy its burden of demonstrating as a matter of law that the defense at issue was without merit. The defense was premised on Prescod's claim that she has a valid mortgage on the subject property with priority over the plaintiff's mortgage. Although the plaintiff raised numerous issues of fact regarding the validity of Prescod's mortgage, the manner in which it was procured, and the extent to which its existence was disclosed to the plaintiff's predecessor in interest, the plaintiff failed to offer evidence demonstrating as a matter of law that Prescod's defense was without merit (cf. Vita v New York Waste Servs., LLC, 34 AD3d at 559). Accordingly, the plaintiff was not entitled to the relief sought.

Stipulations

Albert Jacobs, LLP v Parker, 2012 NY Slip Op 02819 (2nd Dept., 2012)

"[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569; see MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645). Here, the parties' written escrow agreement clearly enumerates certain conditions to the release of escrow funds. None of those conditions was met.

Altonen v Kmart of NY Holdings, Inc., 2012 NY Slip Op 02820 (2nd Dept., 2012)

The Supreme Court providently exercised its discretion in denying the defendants' cross motion to compel production of a confidential settlement agreement from certain prior personal injury actions unrelated to this action, as the settlement agreement is not material and necessary to their defense of this action (see CPLR 3101[a]; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 70 AD3d 530; Matter of New York County Data Entry Worker Prod. Liab. Litig., 222 AD2d 381).

5015(a)(1)(4)

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

Mr. Ho Charter Serv., Inc. v Ho, 2012 NY Slip Op 03102 (1st Dept., 2012)

The order entered on or about August 1, 2011 is nonappealable, as it was entered on default within the meaning of CPLR 5511 (see Armin A. Meizlik Co. Inc. v L & K Jewelry Inc., 68 AD3d 530, 531 [2009]).

The motion to vacate the order entered on or about August 1, 2011 should have been granted, as defendant demonstrated a meritorious defense and a reasonable excuse for failing to appear at a preliminary conference (see Armin, 68 AD3d at 531; CPLR 5015[a][1]). Defendant showed that his failure to appear was neither willful nor a pattern of dilatory behavior, but was simply the result of illness and inadvertent law office failure. Indeed, defendant submitted affirmations by his attorneys stating that they failed to note the scheduled preliminary conference date set forth in two prior orders, that the primary attorney assigned to the case was sick and unable to attend the scheduled conference, and that a substitute attorney from the same law office had advised the court that she would not be able to arrive to the conference by the scheduled time (see Armin, 68 AD3d at 531; Chelli v Kelly Group, P.C., 63 AD3d 632 [2009]). 

Plaintiff's corporate records and the affidavits based on personal knowledge submitted by the parties, together with prior orders of the court that evaluated the evidence and denied plaintiff injunctive relief, demonstrate merit to the defense.

Feldman v Delaney, 2012 NY Slip Op 03133 (2nd Dept., 2012)

In an action to recover damages for medical malpractice, etc., the plaintiff Tuvia Feldman appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered April 15, 2011, which denied his motion (1) to vacate an order of the same court dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against those defendants upon his failure to proceed with the trial, and (2) to restore the action to the trial calendar.

ORDERED that the order entered April 15, 2011, is affirmed, with costs.

The appellant's motion, inter alia, to vacate an order dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against them, was properly denied, as it was not made within one year after service of a copy of the order with notice of entry (see CPLR 5015[a][1]; Wold v City of New York, 85 AD3d 776, 777; Valentin v City of New York, 73 AD3d 755, 756; Cazeau v Paul, 2 AD3d 477, 478; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197). Furthermore, the one-year time period should not be extended in the exercise of discretion, since the appellant failed to demonstrate a reasonable excuse for his lengthy delay in moving, among other things, to vacate the order dated December 21, 2009 (see Valentin v City of New York, 73 AD3d at 756; Leinas v Long Is. Jewish Med. Ctr., 72 AD3d 905, 906; Carter v City of New York, 231 AD2d 485, 486). In any event, the appellant failed to demonstrate a reasonable excuse for his failure to proceed with the trial and a potentially meritorious cause of action (see CPLR 5015[a][1]; Schmitt v Jeyalingam, 71 AD3d 757; Nowell v NYU Med. Ctr., 55 AD3d 573, 574; Santiago v Santana, 54 AD3d 929, 930; Bollino v Hitzig, 34 AD3d 711).

Prudence v Wright, 2012 NY Slip Op 03157 (2nd Dept., 2012)

Where, as here, a defendant moves to vacate a judgment entered upon his or her default in appearing or answering the complaint on the ground of lack of personal jurisdiction, the defendant is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense (see Harkless v Reid, 23 AD3d 622, 622-623; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402). Contrary to the determination of the Supreme Court, the defendant established entitlement to relief from default on the ground that she was not properly served with the summons and complaint pursuant to CPLR 308(4). The affidavit of service of the plaintiff's process server alleged that the process server attempted to deliver the summons and complaint to the defendant at her "dwelling house" or "usual place of abode," rather than her actual place of business, on January 19, 2009, at 7:17 P.M., January 26, 2009, at 6:51 A.M., and February 25, 2009, at 4:03 P.M. After all three unsuccessful attempts, the process server affixed a copy of the summons and complaint to the defendant's door and mailed a copy to the same address, which was alleged to be the defendant's "last known residence." Contrary to these averments in the affidavit of service, the defendant presented proof, inter alia, that the address where service was attempted, as alleged in the affidavit of service, was in fact her office address.

The defendant established that the plaintiff's process server failed to exercise "due diligence" in attempting to effectuate service pursuant to CPLR 308(1) or (2) before using the "affix and mail" method pursuant to CPLR 308(4) (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d 902, 903 [internal quotation marks omitted]; see Lombay v Padilla, 70 AD3d 1010, 1012). [*2]Due diligence was not exercised because two of the three attempts at service were at times when the defendant could not reasonably be expected to be at work, a national holiday (January 19, 2009) and at 6:51 A.M. on January 26, 2009 (see Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889; O'Connell v Post, 27 AD3d 630; Earle v Valente, 302 AD2d 353; Annis v Long, 298 AD2d 340). Furthermore, no attempt to effectuate service was made at the defendant's actual "dwelling place or usual place of abode" (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903 [internal quotation marks omitted]; see Earle v Valente, 302 AD2d at 353), nor did the process server make genuine inquiries to ascertain the defendant's actual residence or place of employment (see McSorley v Spear, 50 AD3d 652, 654; Estate of Edward S. Waterman v Jones, 46 AD3d 63, 66).

Under these circumstances, the service of the summons and complaint pursuant to CPLR 308(4) was defective as a matter of law (see JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903; Earle v Valente, 302 AD2d at 354; Gurevitch v Goodman, 269 AD2d 355, 356). Since the Supreme Court had not acquired personal jurisdiction over the defendant, the default judgment entered against her was a nullity (see Fleisher v Kaba, 78 AD3d 1118, 1120; Steele v Hempstead Pub Taxi, 305 AD2d at 402). Accordingly, the defendant's motion, in effect, to vacate the judgment entered upon her default and to dismiss the complaint on the ground of lack of personal jurisdiction should have been granted.

We note that the action was timely commenced by filing the summons and complaint in the office of the Clerk of Kings County. Under the circumstances of this case, despite the dismissal of the complaint on the ground of lack of personal jurisdiction, the plaintiff should be permitted, if she be so advised, to re-serve the appellant within 120 days of the date of this decision and order (see CPLR 306-b; Gurevitch v Goodman, 269 AD2d at 356).

Rocco v Family Foot Ctr., 2012 NY Slip Op 03161 (2nd Dept., 2012)

Almost a year later, on April 20, 2010, Lombardi served the plaintiff with a copy of the order entered May 22, 2009, with notice of entry. The plaintiff was unaware that the complaint had been dismissed until she received the notice of entry of the order. The plaintiff then moved by notice of motion dated May 14, 2010, (a) pursuant to CPLR 5015(a)(1) to vacate the order entered May 22, 2009, (b) to restore the action to the trial calendar, and (c) pursuant to CPLR 3124 to compel Zawada to appear for a deposition. In the order appealed from, the Supreme Court denied the plaintiff's motion. The plaintiff appeals, and we reverse.

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion (see Thapt v Lutheran Med. Ctr., 89 AD3d 837, 837; Bazoyah v Herschitz, 79 AD3d 1081, 1081; Raciti v Sands Point Nursing Home, 54 AD3d 1014; Montague v Rivera, 50 AD3d 656, 657; St. Rose v McMorrow, 43 AD3d 1146). Here, the plaintiff established that her failure to oppose Zawada's motion was neither willful nor deliberate (see Raciti v Sands Point Nursing Home, 54 AD3d 1014; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr. Corp., 45 AD3d 634). Her attorney's affirmation established that the failure of the attorney's firm to diary the return date of Zawada's motion was inadvertent and an isolated incident.

The plaintiff also established that her opposition to Zawada's motion was potentially meritorious. In opposition to a motion pursuant to CPLR 3404 to dismiss the complaint for failure to prosecute, the plaintiff must "demonstrate a [potentially] meritorious cause of action, a reasonable excuse for the delay, and a lack of intent to abandon the action, and that the defendant[] would not be prejudiced by the delay" (Botsas v Grossman, 51 AD3d 617, 617). Here, the plaintiff demonstrated through the affidavit of her expert that she had a potentially meritorious cause of action (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d 658, 658; Sanchez v Denkberg, 284 AD2d 446). The plaintiff also demonstrated a reasonable excuse for her delay in moving to restore the action to the trial calendar and her lack of intent to abandon the action through her attorney's affirmation and exhibits presented on the motion and in reply, which showed that her attorney had been diligently attempting to schedule the depositions, but was unable to do so as of the date of Zawada's motion (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446). In addition, the plaintiff demonstrated that Zawada and Lombardi would not suffer any prejudice if the action was restored to the trial calendar (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446). The plaintiff also acted promptly to cure her default upon learning of it (see Raciti v Sands Point Nursing Home, 54 AD3d at 1014). [*3]

In light of the foregoing, the plaintiff established that the Supreme Court improvidently exercised its discretion by denying those branches of her motion which were pursuant to CPLR 5015(a)(1) to vacate the order entered May 22, 2009, and to restore the action to the trial calendar (see Kahgan v Alwi, 67 AD3d 742). The Supreme Court also improvidently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3124 to compel Zawada to appear for a deposition before trial given Zawada's failure to comply with prior court orders (see CPLR 3124).

Accordingly, the Supreme Court should have granted the plaintiff's motion, and thereupon denied Zawada's motion to dismiss the complaint for failure to prosecute, and we remit the matter to the Supreme Court, Queens County, to schedule depositions.

4518

CPLR R. 4518 Business records

Landmark Capital Invs., Inc. v Li-Shan Wang, 2012 NY Slip Op 02430 (1st Dept., 2012)

The record supports the finding that defendant Wang (defendant) was properly served. The detailed description of the service attempts on defendant and of the interior of defendant's building supported the determination that the process server was credible. Although the process server was under investigation for improper record keeping by the Department of Consumer Affairs, the relevant portions of the record support the finding that his version of facts was accurate (cf. Matter of Barr v Department of Consumer Affairs of City of N.Y., 70 NY2d 821 [1987]).

Plaintiff established its entitlement to judgment as a matter of law by relying in part on the original loan file prepared by its assignor. Plaintiff relied on these records in its regular course of its business (see Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336, 337 [2006], lv denied 7 NY3d 715 [2006]). Defendant failed to raise a triable issue as to whether plaintiff was "doing business in this state without authority," which, under Business Corporation Law § 1312(a), would preclude it from bringing suit. Although plaintiff often purchased debt held by New York debtors, this, as an activity carried on by an Ohio company with no offices or employees in New York, is not sufficient to constitute doing business under section 1312 (see Beltone Elecs. Corp. v Selbst, 58 AD2d 560 [1977]).

3212 and (f)

3212

Fook Cheung Lung Realty Corp. v Yang Tze Riv. Realty Corp., 2012 NY Slip Op 02793 (1st Dept., 2012)

J & A provided its insurer with notice of plaintiff's property damage claim within a reasonable time (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). J & A made a prima facie showing on its motion through the affidavit of its vice president stating the date that J & A arrived at the construction site and the extent of its duties and denying knowledge of the property damage until J & A's receipt of an attorney's letter in May of 2007, coupled with the deposition testimony of plaintiff's president regarding the date he first noticed the damage, which was before J & A's arrival. QBE's claim in opposition that J & A had knowledge of the damage before May of 2007 failed to raise an issue of fact, as evidence of conversations between plaintiff's president and a representative of the general contractor working at the adjoining premises and of complaints to the Department of Buildings would not necessarily have put J & A on notice, and it is mere conjecture that J & A was in fact told by others [*2]of the damage. QBE's claimed need for discovery to oppose the motion reflected an ineffectual mere hope (see MAP Mar. Ltd. v China Constr. Bank Corp., 70 AD3d 404 [2010]). In view of the foregoing, we also find that the determination as to the duty to indemnify was not premature.

Taylor v One Bryant Park, LLC, 2012 NY Slip Op 02427 (1st Dept., 2012)

Although summary judgment is not warranted where "credible evidence reveals differing versions of the accident" (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [2012]), the evidence upon which defendants rely is neither credible, nor admissible. The workers' compensation C-2 report is not signed or authenticated, and it is not conclusively clear who created the report or where that person acquired the information (see Zuluaga v P.P.C. Const., LLC, 45 AD3d 479 [2007]). Assuming that the site medic listed on the report completed it, an affidavit from that same medic gives a different version of the accident from that listed on the C-2. The affidavit does not address the inconsistency, and is also not notarized. "While hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where [as here] it is the only evidence submitted in opposition" (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]).

Experts

3101

2106

Rojas v Palese, 2012 NY Slip Op 02790 (1st Dept., 2012)

The jury's finding that defendant Palese deviated from the standard of care in causing plaintiff's aorta to tear during a laparoscopic donor nephrectomy was based on legally sufficient evidence and was not against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]). Defendants' objections to the qualifications of plaintiff's vascular surgery expert go to the weight and not the admissibility of the expert's testimony (Williams v Halpern, 25 AD3d 467, 468 [2006]); the weight to be accorded to conflicting expert testimony is a matter for the jury (see Torricelli v Pisacano, 9 AD3d 291 [2004], lv denied 3 NY3d 612 [2004]).

Plaintiff's expert was properly allowed to testify as to future damages since there was no showing of a willful failure to disclose this testimony or of resulting prejudice to defendants (see CPLR 3101[d][1][i]; Colome v Grand Concourse 2075, 302 AD2d 251 [2003]). The videotape and photographs proffered by defendants were properly excluded; the limited probative value of a demonstration of Palese's performance of the same procedure on another patient was outweighed by the prejudicial effect of showing the jury the complexity of the surgery and the level of skill exhibited by Palese (see Glusaskas v John E. Hutchinson, III, M.D., P.C., 148 AD2d 203, 205-206 [1989]).

Cruz v Rivera, 2012 NY Slip Op 02811 (1st Dept., 2012)

The unaffirmed MRI reports, which were referred to and not disputed by defendant's medical expert, and were relied upon by plaintiff's physician, were properly considered in opposition to the motion since they were not the sole basis for the findings of plaintiff's physician (see Rubencamp v Arrow Exterminating Co., Inc., 79 AD3d 509 [2010]).

Underbruckner Realty Corp. v Tax Commn. of the City of N.Y., 2012 NY Slip Op 02767 (1st Dept., 2012)

Petitioners rebutted the presumption of validity as to the existing tax assessments by presenting "substantial evidence" demonstrating "the existence of a valid and credible dispute regarding valuation" (see Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 187-188 [1998]). The trial court's determination that petitioners' property has been overvalued is supported by a preponderance of the evidence (see id. at 188). Looking to the Medicaid reimbursement rate as a means to assess the value of a nursing home has been judicially recognized (see e.g. Tarrytown Hall Care Ctr. v Board of Assessors, Sup Ct, Westchester County, Mar. 4, 2004, Rosato, J., Index No. 14267/98).

Respondents' expert's assertion that the methodology he employed is the only way to assess the value of a nursing home's real estate runs afoul of the principle that "there is no fixed method for determining that value" (see Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992]). Courts are "under no compunction to . . . confine[] assessors to any one course" (see Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538, 541 [1978]). Furthermore, both the experts used the income capitalization approach, which calls for "the exercise of judgment by the appraiser," because the approach yields, "at best, no more than an estimate of the present worth of the benefits to be reaped from the property at issue" (id., 45 NY2d at 542). In addition, whether the apartment buildings relied upon by petitioners were valid "comparables" was a question of fact to be resolved by the trial court (see Matter of Miriam Osborn Mem. Home Assn. v Assessor of City of Rye, 80 AD3d 118, 144 [2010]).

It is true that respondents presented evidence upon which the court could reasonably have [*2]found that the Medicaid reimbursement rate (even as amended upward by non-Medicaid patient data) was not an accurate measure of market rent. However, in reducing the existing assessments in half, the court implicitly found that the market value numbers proffered by petitioners were below market and partially credited respondents' methodology, finding, however, that it produced above-market values for the respective tax years. Contrary to respondents' contention, the court did not improperly "split the difference." The court's valuations were "within the range of the trial evidence" (see Matter of Kips Bays Towers Condominium v Commissioner of Fin., 66 AD3d 506, 506-507 [2009], lv denied 14 NY3d 708 [2010]).

We also reject respondents' contention that the court failed to set forth "the essential facts found upon which the ultimate finding of facts [was] made" (RPTL 720[2]). While the court might have addressed the respective methodologies and calculations of the parties more specifically, it did state the essential fact: that both sides presented cogent arguments and that "the true valuation of the property is greater than that proposed by the Petitioner[s] and less than that proposed by the Respondents" (cf. Matter of Trinity Place Co. v Finance Adm'r of City of N.Y., 72 AD2d 274, 275 [1980], affd 51 NY2d 890 [1980]).

Ramkumar v Grand Style Transp. Enters. Inc., 2012 NY Slip Op 02597 (1st Dept., 2012) (note the dissent)

Defendants made a prima facie showing of entitlement to judgment as a matter of law. The differences in the defense experts' range-of-motion findings are minor and both doctors concluded that plaintiff's range of motion is normal (see Feliz v Fragosa, 85 AD3d 417, 418 [2011]).

In opposing defendants' motions, plaintiff failed to offer a reasonable explanation for a significant gap in his medical treatment that was raised by the Bissessar defendants when they cross-moved for summary judgment. As the Court of Appeals held in Pommells v Perez (4 NY3d 566 [2005]), "a plaintiff who terminates therapeutic measures following the accident, [*2]while claiming serious injury,' must offer some reasonable explanation for having done so" (id. at 574).

Plaintiff's accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiff's orthopedic surgeon recommended physical therapy. When asked when he last received physical therapy, plaintiff testified that he was "cut off" five months before his July 2008 deposition. Therefore, the record gives no indication that plaintiff received any medical treatment during the 24-month period before he submitted answering papers to defendants' motions. We assume, as the dissent does, that there are limits to the amount of no-fault coverage for medical services such as physical therapy. The inquiry, however, does not end there. A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds (see e.g. Gomez v Ford Motor Credit Co., 10 Misc 3d 900, 903 [Sup Ct Bronx County 2005]; see also Salman v Rosario, 87 AD3d 482 [2011]; Jacobs v Rolon, 76 AD3d 905 [2010]). Plaintiff, who was employed and living with his parents, gave no such indication. Also, the dissent's theory that "[i]njuries are not always treatable by physical therapy" is speculative and finds no support in the record.

Barry v Arias, 2012 NY Slip Op 02606 (1st Dept., 2012)

Plaintiffs Danielle Barry and Cherlynn Reeves allege that they sustained serious injuries as a result of their car being rear-ended by defendants' livery cab in July 2008. Defendants made a prima facie showing that neither plaintiff sustained a permanent or significant injury by submitting the affirmed reports of a neurologist and orthopedist who, based upon examinations of plaintiffs in November 2009 and February 2010, found no neurological deficits and full ranges of motion in both plaintiffs' cervical and lumbar spines, and in Barry's right knee, and concluded that any alleged injuries had resolved. Further, the affirmed MRI reports of defendants' radiologist noted an absence of evidence of recent trauma or acute injuries to the spines (see Porter v Bajana, 82 AD3d 488 [2011]; Amamedi v Archibala, 70 AD3d 449, 449 [2010], lv denied 15 NY3d 713 [2010]). The physicians' failure to review plaintiffs' medical records does not require denial of defendants' motion, as the doctors detailed the objective tests they employed during the examinations to find full ranges of motion, and the radiologist's finding of absence of recent trauma was based on an independent review of the MRI films (see Canelo v Genolg Tr. Inc., 82 AD3d 584 [2011]; Clemmer v Drah Cab Corp., 74 AD3d 660, 660-661 [2010]; DeJesus v Paulino, 61 AD3d 605, 607 [2009]).

Neither plaintiff raised a triable issue of fact to defeat summary judgment, as none of their medical evidence was submitted in admissible form. Their radiologists' and physiatrist's reports were unaffirmed (see CPLR 2106; Lazu v Harlem Group, Inc., 89 AD3d 435 [2011]; Pinkhasov v Weaver, 57 AD3d 334 [2008]). Although their chiropractor affirmed his reports, reports of chiropractors must be subscribed before a notary or other authorized official (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [2003]; see also CPLR 2106).

Jean-Louis v Gueye, 2012 NY Slip Op 02612 (1st Dept., 2012)

Defendants met their prima facie burden with respect to the permanent consequential and significant limitation categories by offering the affirmation of an orthopedic surgeon who found normal ranges of motion for plaintiff's cervical spine, lumbar spine, left and right hips, and left and right knees (see Insurance Law § 5102[d]; Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Plaintiff raised an issue of fact in opposition by submitting the MRI reports of her lumbar spine showing bulges at L4-5 and L5-S1, of her cervical spine showing disc bulges at C5-C6, and a grade II tear of the MCL of plaintiff's right knee, along with the affirmation of her orthopedic surgeon stating that such injuries were caused by the accident or had been exacerbated thereby, and that each of those body parts suffered losses in their range of motion as a result of the accident.

We reject defendants' argument that the affirmation of plaintiff's orthopedic surgeon is rendered speculative because of his failure to reconcile the notation made on plaintiff's emergency room records indicating a full range of motion of her cervical spine. Those records are unaffirmed, fail to indicate any objective instruments or criteria used to make such a finding, and fail to compare normal values (see Pommells v Perez, 4 NY3d 566, 573-574 [2005]; Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 [2010]; DeJesus v Paulino, 61 AD3d 605 [2009]). Further, contrary to defendants' arguments, plaintiff's orthopedic surgeon set forth an adequate basis for relating the accident as the cause of plaintiff's injuries or the exacerbation [*2]thereof (see Perl v Meher, 18 NY3d 208 [2011]). We also reject defendants' arguments pertaining to plaintiff's alleged gap in treatment because it is adequately explained by her orthopedic surgeon's finding that her improvement plateaued (see Pommells v Perez, 4 NY3d at 574; Mercado-Arif v Garcia, 74 AD3d 446 [2010]).

Martin v Kone, Inc., 2012 NY Slip Op 02564 (1st Dept., 2012)

In opposition, plaintiff failed to raise a triable issue of fact on the issue of actual or constructive notice. There was no evidence that the prior incidents identified in the work tickets "were of a similar nature to the accident giving rise to this lawsuit" or "were caused by the same or similar contributing factors" (Chunhye Kang-Kim v City of New York, 29 AD3d 57, 60-61 [2006]; see Levine v City of New York, 67 AD3d 510, 510-511 [2009]).

Plaintiff also failed to raise an issue of fact as to defendant's negligent maintenance since her expert's affidavit contained mere speculation, unsupported by any evidentiary foundation (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). The expert failed to provide the results of his "examination" of the elevator and elevator room, or identify the basis for his conclusion that plaintiff's accident was caused by defendant's failure to maintain the elevator in accordance with industry standards.

However, defendant's witness testified that he did not know what type of detector edge was on the elevator or whether the detector edge had multiple beams in it. Thus, there was no [*2]evidence in the record that plaintiff had access to the mechanism that would cause the door to retract (see Gutierrez v Broad Fin. Ctr. LLC, 84 AD3d 648 [2011]; Ianotta v Tishman Speyer Props., Inc., (46 AD3d 297, 298 [2007]), Therefore, defendant is not entitled to summary judgment.

Callistro v Bebbington, 2012 NY Slip Op 02423 (1st Dept., 2012)

Contrary to the dissent's contention, neither Dr. Halbridge's nor Dr. Roseman's opinion raises a triable issue as to causation, since each fails to address how the claimed departures could have caused the claimed cognitive delays. Dr. Halbridge failed to rebut Dr. D'Alton's key assertion that the normal values for plaintiff's umbilical cord gas were "entirely inconsistent" with hypoxic injury. Dr. Halbridge did not dispute Dr. D'Alton's opinion that the gas test results completely ruled out hypoxia or the fact that the hospital record attributes the first (low) Apgar score to the nuchal cord. Rather, he ambiguously stated that "loss of beat to beat variability coupled with late decelerations . . . enhance[] the likelihood that the fetus is undergoing significant hypoxia" (emphasis supplied) and that "[t]his occurred in the present case, notwithstanding the normal umbilical cord blood gas values that were obtained." Dr. Halbridge's statement amounted to bare conjecture, which lacks the "reasonable degree of medical certainty" required in an expert affidavit in a medical malpractice case (see Burgos v Rateb, 64 AD3d 530, 530 [2009]). Moreover, Dr. Halbridge ignored Dr. D'Alton's further point that plaintiff's [*3]discharge three days after his birth disproved his claimed injury. Finally, Dr. Halbridge did not explain how the December 11 neurosonogram, which indicated "possible" hemorrhages, could show that the plaintiff suffered permanent brain damage, as Dr. Roseman concluded, since a follow-up neurosonogram performed one month later showed no evidence of hemorrhaging.

Dr. Roseman opined in conclusory fashion that the hypoxic-ischemic stress and other trauma that occurred during the delivery resulted in permanent brain damage, primarily to the neocortex, which in turn caused plaintiff's speech and language disorder. However, Dr. Roseman failed to support this opinion with a radiological study of plaintiff's brain or any other medical record demonstrating brain damage other than language delay. Dr. Roseman's assertions that "[t]here is nothing in [plaintiff's] medical history, other than the abnormal labor and delivery, that would account for his deficits in speech and language" and that the deficits resulted from his permanent brain damage are entirely conclusory. In fact, the record shows that plaintiff's cousins suffer from similar language deficits.

Duran v Kabir, 2012 NY Slip Op 02173 (1st Dept., 2012)

In opposition, plaintiff submitted the affirmed reports of her physicians, who found limitations in the range of motion of plaintiff's cervical and lumbar spine shortly after the accident and approximately two years later. Plaintiff also submitted the MRI reports of a radiologist, who noted disc bulges in both the cervical and lumbar spine. This evidence raises triable issues of fact as to whether plaintiff sustained a "significant limitation of use" and "permanent consequential limitation of use" of the cervical and lumbar spine (Insurance Law § 5102[d]; see Fuentes v Sanchez, 91 AD3d 418 [2012]). While the MRI reports are unsworn, they are admissible, as the reports and MRI films were reviewed by one of plaintiff's physicians and were incorporated into the findings of plaintiff's doctors (see Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [2010]). Plaintiff adequately explained the gap in treatment by submitting the affirmed report of a doctor, who opined that plaintiff had "reached an endpoint" in her physical therapy, and that there was no evidence that she was actively improving therefrom (see Mitchell v Calle, 90 AD3d 584, 585 [2011]).

Eve of trial SJ

3212(a)

Ovenseri v St. Barnabas Hosp., 2012 NY Slip Op 02601 (1st Dept., 2012)

Appeals from order, Supreme Court, Bronx County (Robert E. Torres, J.), entered March 15, 2011, which, among other things, stayed all proceedings in this action for 90 days pending a determination by the Workers' Compensation Board regarding plaintiff's status at the time of the alleged accident, and order, same court and Justice, entered July 19, 2011, which denied as moot defendant's motion to modify the order entered March 15, 2011 by, among other things, deleting the 90-day limit on the stay, unanimously dismissed, without costs, as moot. Order, same court and Justice, entered December 2, 2011, which, to the extent appealed from as limited by the briefs, denied defendant's motion to stay all proceedings in this action pending its appeal of the Board's determination, and thereupon denied its motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff, a participant in an out-patient program conducted on premises under the control of defendant hospital, alleges that she was injured when she slipped on a wet floor while she was voluntarily assisting during the program's coffee break.

Defendant is not entitled to a stay of the proceedings in this action pending a determination of its appeal by the Board. Indeed, the matter should not have been referred to the Board, as defendant failed to raise the workers' compensation defense until its eve-of-trial application for a stay, after the time for making summary judgment motions had expired (see Shine v Duncan Petroleum Transport, Inc., 60 NY2d 22, 27-28 [1983]; Sangare v Edwards, 91 AD3d 513 [2012]). Nor should plaintiff's case be dismissed for her purported failure to timely file a workers' compensation claim. Defendant never raised this argument before the motion court, and it expressly waived the argument in its appeal of the Board's determination denying as time-barred any claim for workers' compensation benefits. 

Defendant's appeals from the orders entered March 15, 2011 and July 19, 2011 have been rendered moot by the Board's determination.

3117(a)(2) Use of Deposition at trial

CPLR R. 3117 Use of depositions

Novas v Zuckerman, 2012 NY Slip Op 02271 (1st Dept., 2012)

CPLR 3117(a)(2) provides that "so far as admissible under the rules of evidence," a party's deposition "may be used for any purpose by any party who was adversely affected when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence." However, although deposition testimony is generally admissible under CPLR 3117(a)(2), that section does not constitute an "absolute and unqualified right to use the deposition at any time during the course of trial" (Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]). The trial court retains discretion concerning the admissibility of such evidence and its exercise of discretion "is not reviewable save for a clear abuse of discretion" id.

Here, the trial court providently exercised its discretion in denying plaintiff's application to introduce into evidence portions of Dr. Zuckerman's deposition testimony. The testimony at issue concerned the necessity of full-length and/or standing leg X rays to measure plaintiff's joint-line on his knee. Contrary to plaintiff's contention, the proffered testimony would not have rebutted the testimony of defendant's expert, who only testified as to the amount of femoral bone removed. The expert did not testify as to measuring the joint line, nor the type of X rays needed to measure the joint line. Moreover, the preclusion of the testimony was not prejudicial to plaintiff's case, since the testimony of defendant's expert was based on X rays that were already in evidence (see e.g. Gogatz v New York City Tr. Auth., 288 AD2d 115, 116 [2001]).