Category: CPLR

Late Amendment

CPLR R 3025 Amended and supplemental pleadings
(c) Amendment to conform to the evidence.

Panasia Estate, Inc. v Broche, 2011 NY Slip Op 07922 (1st Dept., 2011)

Although motions for leave to amend may be granted on the eve of trial (see CPLR 3025[c]; Reyes v City of New York, 63 AD3d 615, 616 [2009], lv denied 13 NY3d 710 [2009]), the motion court properly denied plaintiff's motion because defendants would be unduly prejudiced by the proposed amendment, which seeks to add a new theory of liability (see Spence v Bear Stearns & Co., 264 AD2d 601 [1999]). The record reveals that discovery, which had been tailored to the theories of liability set forth in the second amended complaint, was nearly complete and the filing date of the note of issue was imminent (see Chichilnisky v Trustees of Columbia Univ. in City of N.Y., 49 AD3d 388 [2008]). Plaintiff sought this amendment 18 months after the action was commenced, after it had amended its complaint twice, and after it and defendants had submitted motions for summary judgment that Supreme Court had resolved (see Heller v Louis Provenzano, Inc., 303 AD2d 20 [2003]).

Furthermore, the proposed amendment, wherein plaintiff seeks specific performance of an oral modification of the parties' contract, is lacking in merit (see e.g. Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [2009], lv dismissed 12 NY3d 880 [2009]). Plaintiff's conduct, as alleged in the proposed third amended complaint, does not unequivocally refer to the purported oral modification, and thus does not fall within the partial performance exception to General Obligations Law § 5-703(4) (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235 [1999]).

Weingarten v S & R Medallion Corp., 2011 NY Slip Op 06655 (1st Dept., 2011)

The court providently exercised its discretion in denying plaintiff's motion. The proposed allegation of a "tacit" modification of the parties' written agreement, which required modifications to be in writing, is clearly devoid of merit (see Bishop v Maurer, 83 AD3d 483, 485 [2011]). Plaintiff denies that there was any oral modification of the written agreement, and he makes no allegations to support a claim of modification based upon conduct. With respect to the remaining proposed allegations, plaintiff asserts that they merely clarify the existing pleading. Accordingly, the court properly determined that they may be proved at trial and, if necessary, the pleadings can be amended to conform to the proof.

Punitive

Felton v Tourtoulis, 2011 NY Slip Op 06472 (2nd Dept., 2011)

The Supreme Court improperly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the plaintiff's demand for punitive damages insofar as asserted against the defendant driver. "Punitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton, or malicious conduct aimed at the public generally, or were activated by evil or reprehensible motives" (Boykin v Mora, 274 AD2d 441, 442). At this stage of the litigation, it is premature to conclude that the allegations in the complaint are insufficient to support a claim that the defendant driver acted so recklessly or wantonly as to warrant an award of punitive damages (see Wilner v Allstate Ins. Co., 71 AD3d 155, 167). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the plaintiff's demand for punitive damages insofar as asserted against the defendant driver.

Fix that appeal with CPLR § 5520 and othe good stuff

CPLR § 5520 Omissions; appeal by improper method

CPLR § 5512 Appealable Paper; entry of order made out of court

Republic Mtge. Ins. Co. v Countrywide Fin. Corp., 2011 NY Slip Op 06292 (1st Dept., 2011)

Initially, to reach the merits of plaintiffs' appeal, we exercise our discretionary authority, pursuant to CPLR 5520(c), to deem the inaccurate notice of appeal as valid to correct the procedural problem created here by plaintiffs' appeal from the order and not the judgment (Robertson v Greenstein, 308 AD2d 381 [2003], lv dismissed 2 NY3d 759 [2004]).

Clemons v Schindler El. Corp., 2011 NY Slip Op 06205 (1st Dept., 2011)

Purported appeals from decisions, Supreme Court, New York County (Judith J. Gische, J. and Ira Gammerman, J.H.O.), filed January 12, 2010, which, respectively, denied a motion to strike this matter from the trial calendar, and denied an application to adjourn the proceedings and directed dismissal of the complaint with prejudice for failure to prosecute, unanimously dismissed, with costs, as taken from nonappealable papers.

In December 2008, trial of this matter was adjourned to January 7, 2009 to accommodate the vacation plans of plaintiff's trial counsel. Several days later, plaintiff brought an order to show cause to remove the case from the trial calendar in order to permit amendment of her expert's report to assert an additional basis of liability. The motion was heard by Supreme Court (Judith J. Gische, J.) and denied in an order entered January 14, 2009. The unsigned transcript of the proceedings, reciting that it "constitutes the decision and order of the Court," was not filed until January 12, 2010.

After appearing before Justice Gische, the parties proceeded to the trial part, where plaintiff sought adjournment on the ground that trial counsel was on trial in another matter. After JHO Gammerman indicated his acquiescence to the extent of adjourning trial for a few days, plaintiff's counsel requested that the court go off the record. When the proceedings resumed, JHO Gammerman ruled that it was dismissing the matter for failure to prosecute, stating that "it is a dismissal with prejudice, and the Clerk is directed to enter appropriate judgment." The transcript of these proceedings, likewise unsigned, was also not entered until January 12, 2010.

The ruling sought to be reviewed on this appeal is indeterminate. The notice of appeal dated January 13, 2010 recites that the appeal is taken "from the order of [Supreme] Court duly entered in the office of the Clerk on January 12, 2010." While the notice fails to specify the individual judge or judicial hearing officer, plaintiff's pre-argument statement (McKinney's NY Rules of Court [22 NYCRR] § 600.17[a]) identifies the ruling appealed from as that of Justice Gische. Finally, plaintiff's brief designates the question to be decided as whether the trial court committed an abuse of discretion in denying the motion to mark the matter off the trial calendar, leading to an order dismissing the case, and concludes that "the orders [sic] appealed from should be reversed."

Although the transcript of proceedings before JHO Gammerman indicates that, upon signing, it may be presented to the Clerk for entry of judgment, it is not signed and no subsequent proceedings are reflected in the record. Particularly, there is no indication that judgment was ever entered.

Neither of the decisions filed on January 12, 2010 constitutes an appealable paper (CPLR 5512[a]), and this appeal must be dismissed for lack of jurisdiction (Matter of Grosso v Slade, 179 AD2d 585, 586 [1992]). The ruling by Justice Gische was reduced to a short-form order duly entered on January 14, 2009 (CPLR 2219[a]) but not appealed from. The JHO's decision was never presented for signature by a Supreme Court Justice, and there is no record of any judgment having been entered thereon from which an appeal could be taken.

Singh v Lincoln Mgt., LLC, 2011 NY Slip Op 06484 (2nd Dept., 2011)

The appeal by the plaintiff from the order must be dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8[c], [e]). The appeal by the defendants third-party plaintiffs from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal by the defendants third-party plaintiffs from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

However, the appeal by the defendants third-party plaintiffs from the judgment must be dismissed, as they are not aggrieved thereby. They received all the relief sought by them on their cross motion for summary judgment dismissing the complaint, the third-party defendant's renewed motion for summary judgment dismissing the third-party complaint was denied as academic, and the third-party complaint has not been dismissed by the Supreme Court (see CPLR 5511). That the order brought up for review on the appeal from the judgment may contain language or reasoning which the defendants third-party plaintiffs deem adverse to their interests does not furnish them with a basis for taking an appeal (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473).

Deller v Mercy Med. Ctr., 2011 NY Slip Op 06365 (2nd Dept., 2011)

As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). The plaintiff appealed from a judgment entered January 12, 2009, which upon, inter alia, an order of the Supreme Court, Nassau County, entered October 4, 2005, denying the plaintiff's motion to restore the action to the trial calendar, dismissed the complaint pursuant to CPLR 3404. That appeal was dismissed by decision and order on motion of this Court dated August 4, 2010, for failure to perfect in accordance with the rules of this Court, and that dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed on that appeal (see Bray v Cox, 38 NY2d at 355). Under the circumstances of this case, we decline to exercise our discretion to determine the merits of the instant appeal from the amended judgment, which raises the same issues as could have been raised on the prior appeal (see Bray v Cox, 38 NY2d 350; Graziano v Graziano, 66 AD3d 835; Blue Chip Mtge. Corp. v Stumpf, 50 AD3d 936; Matter of Talt v Murphy, 35 AD3d 486; Hepner v New York City Tr. Auth., 27 AD3d 418).

CPLR § 4545

CPLR § 4545 Admissibility of collateral source of payment

Johnson v New York City Tr. Auth., 2011 NY Slip Op 06402 (1st Dept., 2011)

In a personal injury action, the court must reduce the damages award "if . . . any element of the economic loss encompassed in the award was or will be replaced, in whole or in part, from a collateral source" (Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81, 83-84 [1995]; CPLR 4545[a])[FN3]. An offset is permitted "only when the collateral source payment represents reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded" (id. at 84). In other words, there must be a match between the item of economic loss awarded by the jury and the collateral source payment. Because CPLR 4545(a) is in derogation of the common law, its provisions must be strictly construed (id. at 86), and the defendant has the burden of establishing entitlement to a collateral source offset by clear and convincing evidence (Kihl v Pfeffer, 47 AD3d 154, 163-64 [2007]; Young v Knickerbocker Arena, 281 AD2d 761, 764 [2001]).

The trial court correctly found that defendant did not meet its burden of showing that the loss of earnings award should be offset by the amount of plaintiff's accidental disability retirement pension. Defendant does not dispute that under Oden it bears the burden of showing that there is a "direct correspondence" between an item of economic loss awarded by the jury and a collateral source payment (87 NY2d at 87). Defendant argues, however, that a disability pension can only be construed as a replacement for the wages plaintiff would have earned if she had not been injured and had remained on the police force.

However, Oden rejected such a broad rule and declined to allow the disability pension there to offset the jury's lost earnings award. The mere fact that the benefit at issue here is termed a disability pension does not end the inquiry; Oden requires that there be a direct match between the benefit and the loss of earnings award. Here, there was insufficient evidence in the record to meet defendant's burden of establishing that this particular disability pension was meant to replace plaintiff's lost earnings. Nor does defendant identify any statute or legislative history to show that the pension received by plaintiff was intended to be a substitute for lost earnings as opposed to an early retirement benefit conferred upon police officers accidentally injured in the line of duty. Although certain sections of the Administrative Code of the City of New York relate to disability pensions for New York City police officers (see e.g. §§ 13-252 and 13-254), neither the briefs in the trial court nor the briefs submitted to this Court identify these statutes as governing plaintiff's disability pension. We cannot assume that these provisions are applicable, and, in the absence of any citation to them by defendant, we decline to speculate.

Although this Court must take judicial notice of statutes, defendant has not explained which of the myriad pension provisions applies to this plaintiff. The judicial notice question here is particularly complex in light of the fact that plaintiff was previously employed as a transit police officer by the New York City Transit Authority. Thus, it is not clear which pension provisions of the Administrative Code or other statutes might apply here.

We reached the same conclusion and found that the defendant had failed to meet its burden of showing that the disability pension replaced the jury's lost earnings award in Gonzalez v Iocovello (249 AD2d 143 [1998], affd on other grounds 93 NY2d 539 [1999]). To the extent this Court's decision in Iazzetti v City of New York (216 AD2d 214 [1995], appeal after remand 256 AD2d 140 [1998], revd on other grounds 94 NY2d 183 [1999]) purports to stand for the broad proposition that disability retirement benefits always constitute an offset of a lost earnings award, it is inconsistent with Oden, which is the controlling precedent.

We do not hold that Oden sets forth a general rule that disability pensions can never be a substitute for lost earnings. We merely conclude that, in this case, defendant did not meet its heavy burden to show its entitlement to an offset. Oden instructed that "[t]he problem of matching up a collateral source to an item of loss is simply a matter of proof and factual analysis" (87 NY2d at 89). Here, defendant's proof falls far short of the clear and convincing evidence necessary to support a collateral source offset in this case (see id. at 88-89; Gonzalez, 249 AD2d at 144).

Accordingly, the judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered March 25, 2009, upon a jury verdict, awarding plaintiff the principal sums of $700,000 for past and future pain and suffering, $500,000 for past loss of earnings and $1,200,000 for future loss of earnings, and bringing up for review orders, same court and Justice, entered September 10, 2007 and on or about July 16, 2008, which, inter alia, denied defendant's posttrial motion to dismiss for failure to make out a prima facie case and, after a hearing, denied defendant's application for a collateral source offset pursuant to CPLR 4545(a), should be reversed, on the law, without costs, the judgment vacated and the matter remanded for a new trial limited to the issue of plaintiff's comparative negligence.

Poundage CPLR § 8012

CPLR § 8012  Mileage fees, poundage fees, additional compensation, and limitation on compensation of sheriffs.

Cabrera v Hirth, 2011 NY Slip Op 06394 (1st Dept., 2011)

A sheriff is entitled to poundage, which is a percentage commission awarded for the collection of money pursuant to a levy or execution of attachment, computed on the monies collected (CPLR 8012[b][1]; see Kurtzman v Bergstol, 62 AD3d757, 757 [2009])[FN1].

Where the collection process has been commenced but has not been completed, a sheriff may still be entitled to a poundage fee under three circumstances: (1) where "a settlement is made after a levy by virtue of an execution" (CPLR 8012[b][2]); (2) where the "execution is vacated or set aside" (CPLR 8012[b][2]); (3) where there has been an affirmative interference with the collection process, thus preventing a sheriff from actually collecting the assets (Solow Mgt. Corp. v Tanger, 10 NY3d 326, 330-331 [2008]; see also Thornton v Montefiore Hosp., 117 AD2d 552, 553 [1986]).

In this action, where enforcement of the underlying judgment was settled with payment by the debtor defendants' insurance carriers directly to the creditor plaintiff after the Marshal had levied certain accounts, the Marshal is entitled to poundage (see Kurtzman at 758).

Traditionally, the amount of poundage is based on the value of the property levied upon (see Considine v Pichler, 72 AD2d 103, 104 [1979], lv denied 49 NY2d 701 [1980]). However, in this case, the poundage fee cannot be determined by reference to the value of the property levied. The settlement cut off the Marshal's ability to prove the value of the accounts levied upon. The motion court therefore properly exercised its discretion in using the settlement amount as a substitute for the unknown actual value of the levied accounts.[FN2]

We turn now to the question of which party is responsible for payment of the poundage fee. In a situation such as this, where a settlement is made after a levy, CPLR 8012(b) is silent on this question. The cases which have addressed this issue turn on which of the three circumstances noted above are present in each particular case (see generally Weinstein-Korn-Miller, NY Civ Prac ¶ 8012.05, et seq. [2d ed]).

In the circumstance where a settlement is made after a levy and the order of attachment is vacated (CPLR 8012[b][3]), the courts have interpreted this to cover the situations where "the attachment was invalid at the outset or the action was dismissed in defendant's favor." In those cases, the party responsible for payment of the poundage is usually the plaintiff (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C8012:1). Where, as here, the order of attachment is "otherwise discharged" (CPLR 8012 [b][3]), "the party liable for poundage is the one who obtains the discharge – usually the defendant." (id.; see Liquifin Aktiengesellschaft v Brennan, 446 F Supp 914, 922 [SD NY 1978]). 

There is a judicially created exception to this latter rule of thumb in cases where a party affirmatively interferes with collection of the money (see Weinstein-Korn-Miller, NY Civ Prac ¶ 8012.04 [2d ed]). In those situations, the party who actively interferes with the collection process may be held responsible for payment of poundage fees.

***

Initially, the fact that plaintiff agreed to take payment directly from the debtor "is an affirmative act interfering with collection by the [Marshal]" (Greenfield v Tripp, 23 Misc 2d 1088, 1089 [1960]). It is uncontroverted that the matter was settled when the defendants' insurers paid the full amount of the judgment to plaintiff's counsel after the Marshal had levied and collected funds from defendants' bank accounts. There is no question that plaintiff's counsel, rather than adhering to the terms of the judgment and waiting the stated 30 days for defendants' insurance carriers to post undertakings, called upon the Marshal's assistance to levy upon defendants' bank accounts or other assets within four days of the entry of the judgment and some five months prior to serving the judgment with notice of entry on defendants. It has long been customary that where a sheriff levies against defendant's property and the matter is thereafter settled, the judgment creditor is liable to the sheriff for the payment of poundage fees as the party who invoked the Sheriff's services (see County of Westchester v Riechers, 6 Misc 3d 584 [2004]; Matter of Associated Food Stores v Farmer's Bazaar of Long Is., 126 Misc 2d 541, 542 [1984]; Matter of Intl. Distrib. Export Co., Inc., 219 F Supp 412 [SD NY 1963]; Seymour Mfg. Co. v Tarnopol, 20 Misc 2d 210 [1959]; Zimmerman v Engel, 114 NYS2d 293 [1952]; Flack v State of New York, 95 N.Y. 461, 466 [1884]; Campbell v Cothran, 56 NY 279 [1874]; Adams v Hopkins, 5 Johns 252 [Sup Ct, NY County 1810]). That is especially appropriate here as plaintiff, as early as November 11, 2004, knew that the entire amount of the judgment was insured, and that defendants' carriers had posted undertakings for the full amount of the judgment. Plaintiff had the opportunity on November 19 to terminate the Marshal's efforts to collect this judgment by declining to sign the 60 day extension as requested by the Marshal. Plaintiff ultimately settled directly with the defendants' insurance carriers rather than follow the court-ordered payment schedule as provided for in the judgment. The record does not show any attempt to advise the Marshal that the carriers posted security or that plaintiff's counsel made his own demand upon those carriers for payment.

As a result, the motion court properly determined that plaintiff and counsel "thwarted" the efforts of the Marshal to collect on this judgment, thus rendering them responsible for payment of the Marshal's poundage fee.

Expertly Fryed and a little precluded

Matter of Bausch & Lomb Contact Lens Solution Prod. Liab. Litig., 2011 NY Slip Op 06460 (1st Dept., 2011)

Plaintiffs failed to meet their burden of showing at the Frye hearing (Frye v United States, 293 F 1013 [1923]) that their experts' opinions that defendant's soft contact lens solution ReNu with MoistureLoc (Renu ML) was causally related to a rise in non-Fusarium corneal infections were generally accepted by the relevant medical or scientific community (see Pauling v Orentreich Med. Group., 14 AD3d 357 [2005], lv denied 4 NY3d 710 [2005]; Lara v New York City Health & Hosps. Corp., 305 AD2d 106 [2003]; see also Marso v Novak, 42 AD3d 377 [2007], lv denied 12 NY3d 704 [2009]). They submitted no "controlled studies, clinical data, medical literature, peer review or supporting proof" of their theory (Saulpaugh v Krafte, 5 AD3d 934, 936 [2004], lv denied 3 NY3d 610 [2004]; Lara, 305 AD2d at 106).

Plaintiffs' experts contended that testing showed a reduced biocidal efficacy of ReNu ML under certain conditions. The experts then extrapolated from those results the conclusion that ReNu ML increased the risk of non-Fusarium infections. However, one of the experts stated in a published article that "contamination is not consistently correlated with a higher rate of microbial keratitis" (Levey and Cohen, Methods of Disinfecting Contact Lenses to Avoid Corneal Disorders, Survey of Ophthalmology, Vol. 41, No. 3, at 296 [1996]). In addition, from a certain study in which a film was found to protect Fusarium, plaintiffs' experts concluded that the film similarly would protect other microorganisms. However, plaintiffs' microbiologist conceded that different types of microorganisms have different needs and respond  differently to different conditions.

Moreover, despite four studies conducted on keratitis infections during the relevant period, plaintiffs introduced no epidemiological evidence of a rise in non-Fusarium infections. The court properly excluded plaintiffs' epidemiologist from explaining this lack of an epidemiological signal, because the testimony had not been previously disclosed by plaintiffs and would have surprised defendant. Additionally, plaintiffs failed to demonstrate good cause for their failure to disclose the testimony (see CPLR 3101[d]; LaFurge v Cohen, 61 AD3d 426 [2009], lv denied 13 NY3d 701 [2009]; Peguero v 601 Realty Corp., 58 AD3d 556, 564 [2009]).

The court properly quashed plaintiffs' subpoena of defendant's expert and former chief medical officer, because the expert had been deposed on three occasions, and plaintiffs failed to articulate any legitimate need for his live testimony (see Pena v New York City Tr. Auth., 48 AD3d 309 [2008]).

Nonnon v City of New York, 2011 NY Slip Op 06463 (1st Dept., 2011)

The Frye test is not concerned with the reliability of a particular expert's conclusions, but rather, with "whether the expert['s] deductions are based on principles that are sufficiently established to have gained general acceptance as reliable" (Nonnon I, 32 AD3d at 103 [internal quotation marks omitted]). General acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion, but that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in reaching their conclusions.

***

Thus, so long as plaintiffs' experts have provided a "scientific expression" of plaintiff's exposure levels, they will have laid an adequate foundation for their opinions on specific causation (Jackson, 43 AD3d at 602 [internal quotation marks omitted]). For example, in Jackson, the court found that the plaintiffs' expert had laid a sufficient foundation for his opinion on causation where, inter alia, the expert was directly involved in the investigation of the potential health consequences of the underlying incident; co-authored a report based on the investigation and research that had been published in a peer-reviewed medical journal, comparing the facts of the incident to those recorded in other studies; and opined that the manner in which DEAE had been fed into the steam system prior to the leak caused concentrated levels of the toxin to be released and that plaintiffs' symptoms were caused by DEAE exposure in a building.

Salman v Rosario, 2011 NY Slip Op 06323 (1st Dept., 2011)

Most important, plaintiff's orthopedic surgeon, Dr. Ehrlich, who performed arthroscopic surgery on plaintiff's knee only four months after the accident, opined that "to a reasonable degree of medical certainty, the motor vehicle accident of 11/28/05 is the proximate cause of her condition, and not from a pre-existing or long standing degenerative process." Plaintiff's surgeon based this conclusion on his observations of plaintiff's knee during surgery (documented in the operative report plaintiff submitted on the original motion) and because plaintiff's MRI films (plaintiff submitted the MRI report on the original motion) did not depict the existence of osteophytes, show evidence of spondylosis or show other symptoms of degenerative processes. Thus, plaintiff's surgeon countered defendant's orthopedist's observation that plaintiff's injuries had no traumatic basis. Plaintiff's surgeon also documented range-of-motion limitations in the knee. Dr. Mian, who also conducted an orthopedic examination in 2008 and found deficits in plaintiff's range of motion, opined that the right knee tear was causally related to the accident. Thus, the evidence more than amply raised an issue of fact as to whether plaintiff had sustained a "serious injury" of a permanent nature to the right knee within the meaning of Insurance Law Section 5102(d).

Plaintiff's objective evidence of injury, four months post-accident, was sufficiently contemporaneous to establish that plaintiff had suffered a serious injury within the meaning of the statute. Dr. Ehrlich based his conclusions in large part on his actual observations of plaintiff's knee during the surgery he performed. This conclusion is significant because the doctor was able to see exactly what the injuries were. Moreover, in her affidavit, plaintiff stated that, prior to surgery, she had physical therapy five times a week for three months. It is not unreasonable to try to resolve an injury with physical therapy before resorting to surgery. The circumstances, i.e., plaintiff's initial medical exam that was close in time to the accident, her intensive physical therapy, her young age and eventual surgery, make the four months between the accident and plaintiff's objective medical evidence sufficiently contemporanous to withstand a motion for summary judgment (see Gonzalez v Vasquez, 301 AD2d 438 [2003] [examining physician's affirmation correlating motorist's neck and back pain two years after rear-end collision to quantified range of motion limitations found on physical examination and bulging and herniated discs described in MRI reports, and opining that motorist's symptoms were permanent, raised genuine issue of material fact as to whether motorist suffered serious injury]; see also Rosario v Universal Truck & Trailer Serv., 7 AD3d 306, 309 [2004]).

However, defendants did establish, prima facie, that plaintiff did not suffer a 90/180-day injury, and plaintiff failed to raise a triable issue of fact, given her testimony that she was out of work for only three days (see Pou v E & S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]).

All concur except Román, J. who dissents in a memorandum as follows:

ROMÁN, J. (dissenting)

To the extent that the majority concludes that renewal of the motion court's order granting summary judgment in favor of Kanate was warranted, and that upon renewal Garcia's evidence precluded summary judgment, I dissent. Here, renewal would only have been warranted in the interest of justice, and to the extent that Garcia's evidentiary submission on renewal failed to establish any injury contemporaneous with her accident, renewal should have been denied.

To the extent that Garcia submitted medical evidence failing to establish treatment earlier than January 25, 2006, two months after this accident, Garcia failed to raise a triable issue of fact as to whether she sustained a serious injury because she failed to submit competent and admissible medical evidence of injury contemporaneous with her accident (see Ortega v Maldonado, 38 AD3d 388, 388 [2007]; Toulson v Young Han Pae, 13 AD3d 317, 319 [2004]; Alicea v Troy Trans, Inc., 60 AD3d 521, 522 [2009]; Migliaccio v Miruku, 56 AD3d 393, 394 [2008]). Accordingly, the motion court properly granted Kanate's initial motion for summary judgment with respect to all categories of injury under Insurance Law § 5102.

On her motion to renew, seeking to remedy shortcomings in her prior submission, Garcia tendered, inter alia, medical records, not previously submitted, purportedly evincing medical treatment contemporaneous with her accident. Specifically and to the extent relevant here, on renewal Garcia submitted records evincing a medical examination occurring a month after her accident. Nothing submitted competently evinced medical treatment at anytime prior thereto. A motion to renew "must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court" (Foley v Roche, 68 AD2d 558, 568 [1979]). However, when the proponent of renewal seeks to proffer new evidence of which he/she was previously aware but did not provide to the court on a prior motion, renewal may be granted if the interest of justice so dictate (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [2001]; Mejia v Nanni, 307 AD2d 870, 871 [2003]). Generally, the interest of justice require renewal when the newly submitted evidence changes the outcome of the prior motion. Here, Garcia sought renewal in order to have the motion court consider evidence previously known to her. Accordingly, renewal would have only been warranted if it served the interest of justice. At best, Garcia's medical evidence of injury on renewal established medical treatment beginning no sooner than a month after her accident. A medical examination occurring a month after an accident is not contemporaneous. Given its plain and ordinary meaning, contemporaneous means "existing, happening in the same period of time" (Webster's New World Dictionary 300 [3rd college ed 2004]). Accordingly, insofar as Garcia's evidence on renewal did not evince medical treatment contemporaneous with the accident, renewal in the interest of justice should have been denied.

The majority takes the untenable position that not only is Garcia's medical examination, occurring a month after the accident, contemporaneous with her accident, but paradoxically that the report of her surgeon, who did not see plaintiff for the first time until four months after her accident, is sufficient to establish the causal link between Garcia's knee injury and her accident such that she raised an issue of fact precluding summary judgment in Kanate's favor. First, if a medical examination occurring one month after an accident is not contemporaneous, then an examination occurring four months after an accident is certainly less so (Mancini v Lali NY, Inc., 77 AD3d 797, 798 [2010] [medical findings made by plaintiff's doctor four months after his accident not sufficiently contemporaneous with the accident to establish a serious injury]); Resek v Morreale, 74 AD3d 1043, 1044-145 [2010] [medical findings made by plaintiff's doctor five months after his accident not sufficiently contemporaneous with the accident to establish a serious injury]). Moreover, even if we assume that this report was temporally contemporaneous with her accident, it was nevertheless bereft of any objective, qualitative, or quantitative evidence of injury to her knee (Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]; Thompson v Abassi, 15 AD3d 95, 98 [2005]). Second, contrary to the majority's assertion, the report of Garcia's orthopedist might have been probative as to her knee injury on the date he performed surgery, but standing alone, his observations on that date could not have been probative as to whether that injury was caused by this accident (see Pommells v Perez, 4 AD3d 101, 101-102 [2004], affd 4 NY3d 566 [2005] [medical opinion as to causation is speculative when the record is bereft of any evidence establishing contemporaneous medical treatment and the doctor proffering opinion sees plaintiff for the first time after a substantial period of time since the accident]; Vaughan v Baez, 305 AD2d 101, 101 (2003); Shinn v Catanzaro, 1 AD3d 195, 198-199 [2003]; Komar v Showers, 227 AD2d 135, 136 [1996]).

The majority relies on two cases in support of its holding, Gonzalez v Vasquez (301 AD2d 438 [2003]) and Rosario v Universal Truck & Trailer Serv., Inc. (7 AD3d 306 [2004]), neither of which bears on the issue of contemporaneous medical treatment and both of which, to the extent that they allow a doctor to establish causation upon an initial examination conducted a substantial time after an accident, are at odds with Vaughan, Shinn, Komar and Pommells.

***

Footnote 1:Although the records from Dr. Cordaro's office are unsworn, it is of no moment. The documents are properly certified as business records (see Mayblum v Schwarzbaum, 253 AD2d 380 [1998]; CPLR 4518[a]), and are referenced only to show plaintiff's complaints and the doctor's referral rather than a medical opinion about a causal relation to the accident.

Matter of New York City 5201-Asbestos Litig., 2011 NY Slip Op 06296 (1st Dept., 2011)

Colgate seeks to question Dr. Sanborn about a hobby allegedly involving asbestos that she mentioned in her consultation note on Karen Tedrick. Dr. Sanborn wrote that "[Tedrick's] father had some sort of hobby activity or other project in the family basement as the patient was growing up, which the patient's brother reports did involve having asbestos in the basement." Tedrick's brother, Richard Konopka, has already been deposed, however, and testified that this hobby referred to a chemistry set that he owned as a teenager. Because the information sought from Dr. Sanborn is available from another source, we agree with the motion court that Dr. Sanborn's deposition should not be compelled (see Ramsey v New York Univ. Hosp. Ctr., 14 AD3d 349 [2005]; CPLR 3101[a][3]; 3101[a][4]).

Lugo v New York City Health & Hosps. Corp., 2011 NY Slip Op 06475 (2nd Dept., 2011)

A running theme throughout the Frye hearing was whether the experts considered the medical literature they had reviewed to be "authoritative." Although both Dr. Katz and Dr. Peyster testified that they did not consider any of the literature they had discussed to be "authoritative," Dr. Katz testified that the Volpe textbook and the articles he had addressed were the sources he would consult for the current science in the areas discussed at the hearing. Dr. Peyster testified that he did not consider any medical literature, including his own book, to be "authoritative" because that term implied that everything in the article or study was correct and was not subject to any further changes. Dr. Peyster's reluctance to apply this label to medical literature was echoed by the defendant's expert Dr. Jahre, who agreed that this term was not used frequently to describe medical literature and that doctors relied upon articles not considered to be "authoritative" to assess the state of the science.

***

In addition, we disagree with the Supreme Court's conclusion that the theory of causation espoused by the plaintiffs' experts lacked an adequate foundation for admissibility. "The Frye inquiry is separate and distinct from the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case" (Parker v Mobil Oil Corp., 7 NY3d 434, 447; see People v Wesley, 83 NY2d at 428-429; Jackson v Nutmeg Tech., Inc., 43 AD3d 599, 601). "The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial" (People v Wesley, 83 NY2d at 429). "The foundation . . . should not include a determination of the court that such evidence is true. That function should be left to the jury" (id. at 425).

****

The Supreme Court's conclusion that the opinion of the plaintiffs' experts lacked an adequate foundation rested largely on its findings that the evidence presented at the Frye hearing established that perinatal ischemia or hypoxia is the overwhelming cause of PVL and that the testimony of the plaintiffs' experts did not eliminate other "more likely possible causes" of Lugo's PVL. In relying upon such reasoning, the Supreme Court, in effect, rendered an assessment as to the ultimate merit of the opinion testimony of the plaintiffs' experts (see People v Wesley, 83 NY2d at 425). Clearly, numerous factual disagreements between the parties' experts were highlighted at the Frye hearing, including, but not limited to, the specific appearance of Lugo's brain MRI abnormalities and their cause. However, these factual disagreements go to the weight to be accorded to the testimony of the plaintiffs' experts by the trier of fact, and not the admissibility of such testimony (see Jackson v Nutmeg Tech., Inc., 43 AD3d at 602).

 

Renewal Judgment and Bankruptcy

CPLR § 5014 Action upon judgment

CPLR § 5018 Docketing of judgment

CPLR § 5203 Priorities and liens upon real judgment

Nelson, L.P. v Jannace, 2011 NY Slip Op 06373 (2nd Dept., 2011)

In 2009 Nelson moved pursuant to CPLR 5014(1) for a renewal judgment, extending the lien on the defendants' real property for an additional 10 years. The defendants cross-moved pursuant to Debtor and Creditor Law § 150 to direct that a discharge of record be marked upon the docket of the judgment entered June 27, 2000, as amended January 25, 2001. The Supreme Court granted the motion and denied the cross motion. The defendants appeal.

Judgment was properly entered against Woods prior to her bankruptcy filing. Contrary to the defendants' contention, the amended judgment was properly entered after the Bankruptcy Court terminated ab initio the automatic bankruptcy stay of actions against Jannace and permitted entry of the judgment. The docketing of the money judgment, by operation of law, created a lien on the defendants' real property within the county (see CPLR 5018[a]; 5203; Gihon, LLC v 501 Second St., LLC, 29 AD3d 629). Since a lien is valid for 10 years (see CPLR 5203[a]), while a money judgment is viable for 20 years (see CPLR 211[b]), CPLR 5014 permits a judgment creditor to apply for a renewal of the judgment lien for an additional 10-year period (see Gletzer v Harris, 12 NY3d 468, 473). The Supreme Court properly granted Nelson's motion pursuant to CPLR 5014(1) for a renewal judgment, despite the defendants' discharge in bankruptcy.

"[A] discharge in bankruptcy is a discharge from personal liability only and, without more, does not have any effect on a judgment lien" (Matter of Acquisitions Plus, LLC v Shapiro, 7 AD3d 957, 958; 11 USC § 524[a][1]). Judgment liens and other secured interests ordinarily survive bankruptcy (see Carman v European Am. Bank & Trust Co., 78 NY2d 1066; McArdle v McGregor, 261 AD2d 591; Bank of N.Y. v Magri, 226 AD2d 412; see also Farrey v Sanderfoot, 500 US 291, 297). Moreover, a creditor need not object to the debtor's discharge in bankruptcy in order to preserve its lien, since the discharge does not affect the lien (see Carman v European Am. Bank & Trust Co., 78 NY2d 1066; McArdle v McGregor, 261 AD2d 591).

When the defendants received discharges in bankruptcy, their personal liability to the plaintiff on the judgment was discharged (see 11 USC § 524[a][1]). However, the defendants did not meet their burden of establishing that the liens on their real property were invalidated or surrendered in the bankruptcy proceedings or set aside in an action brought by the receiver or trustee. Accordingly, they were entitled only to a qualified discharge (see Debtor and Creditor Law § 150[4][b]; Carman v European Am. Bank & Trust Co., 78 NY2d 1066; Bank of N.Y. v Magri, 226 AD2d 412; Matter of Leonard v Brescia Lbr. Corp., 174 AD2d 621). "A qualified' discharge, as distinguished from an unqualified discharge, serves as notice to third parties that, notwithstanding the debtor-owner's discharge in bankruptcy, the property may, nonetheless, still be burdened by liens" (Carman v European Am. Bank & Trust Co., 78 NY2d at 1067).

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).

Just some CPLR § 6501 to pass the time

CPLR § 6501  Notice of pendency; constructive notice

Del Pozo v Impressive Homes, Inc., 2011 NY Slip Op 06091 (2nd Dept., 2011)

While a purchaser or encumbrancer whose interest in property is acquired after the filing of a notice of pendency is bound by all proceedings taken in the action (see CPLR 6501), a notice of pendency does not serve to create rights (see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 161) which would give rise to a viable claim to recover damages against a subsequent mortgagee.

Sumry Judments with a little RJ and JE, all in the 1st Department. One bit of EE in the 2nd.

CPLR R. 3212

Lance Intl., Inc. v First Natl. City Bank, 2011 NY Slip Op 05982 (1st Dept., 2011) 

Contrary to defendant's contention, its defense is that plaintiff lacks capacity to sue, not that the court lacks subject matter jurisdiction (see Security Pac. Natl. Bank v Evans, 31 AD3d 278, 279-280 [2006], appeal dismissed 8 NY3d 837 [2007]). Contrary to plaintiff's contention, Civil Court did not raise the issue of lack of capacity sua sponte.

While a defense that a party lacks capacity to sue (see CPLR 3211[a][3]) is waived if not raised in a pre-answer motion or in a responsive pleading (see CPLR 3211[e]), plaintiff's lack of capacity did not arise until after joinder of issue, and therefore, defendant did not waive that defense (see George Strokes Elec. & Plumbing v Dye, 240 AD2d 919, 920 [1997]).

A defendant may move for summary judgment based on an unpleaded defense (see e.g. Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]). Plaintiff can hardly claim prejudice or surprise from defendant's assertion that it lacked capacity to sue. In 1995, it moved to substitute its president as the plaintiff, arguing that he was "the real party in interest by virtue of the dissolution of the corporation."

Defendant's underlying motion for summary judgment was timely (see CPLR 3212[a]). Plaintiff has supplied no proof in the record that Civil Court required defendant to file its summary judgment motion by July 21, 2008. Even if, arguendo, one judge of the Civil Court ordered defendant to file its motion by July 21, 2008, this order was superseded by the parties' October 16, 2008 stipulation, which set a briefing schedule for the motion and was so-ordered by another judge of the Civil Court.

Plaintiff's original note of issue, which was filed on October 19, 2007, "was, in effect, nullifed" (Negron v Helmsley Spear, Inc., 280 AD2d 305 [2001]) when the action was removed from the trial calendar. Therefore, the operative note of issue is the one filed on April 25, 2008 (see Williams v Peralta, 37 AD3d 712, 713 [2007]), and the motion was timely.

Montolio v Negev LLC, 2011 NY Slip Op 05985 (1st Dept., 2011)

Furthermore, although Negev's answer is contained in the record, it is verified only by counsel. The motion also is supported only by counsel's affirmation; no submission was made by anyone with personal knowledge (Lopez v Crotona Ave. Assoc., LP, 39 AD3d 388, 390 [2007]).

 

RJ and JD

 

UBS Sec. LLC v Highland Capital Mgt., L.P., 2011 NY Slip Op 05979 (1st Dept., 2011)

The parties appealed, presenting us with the question whether and to what extent the doctrine of res judicata applies to these circumstances. The doctrine dictates that, "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Inv. Corp. v Lopez, 46 NY2d 48l, 485 [1979]). It used to be the rule that, even if the two actions arose out of an identical course of dealing, the second was not barred by res judicata if "the requisite elements of proof and hence the evidence necessary to sustain recovery var[ied] materially" (Smith v Kirkpatrick, 305 NY 66, 72 [1953]). However, the Court of Appeals expressly rejected that method of analysis in O'Brien v City of Syracuse (54 NY2d 353 [1981]). There it held that "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (54 NY2d at 357). The Court further stated: 

"[w]hen alternative theories are available to recover what is essentially the same relief for harm arising out of the same or related facts such as would constitute a single factual grouping' (Restatement, Judgments 2d, § 61 [Tent Draft No. 5]), the circumstance that the theories involve materially different elements of proof will not justify presenting the claim by two different actions" (id. at 357-358).

Notably, regarding this point, the Court stated in a footnote that, insofar as Smith (305 NY at 66) "may be to the contrary, it is overruled" (id.). Whether facts are deemed to constitute a single factual grouping for res judicata purposes "depends on how the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether . . . their treatment as a unit conforms to the parties' expectations or business understanding or usage" (Smith v Russell Sage Coll., 54 NY2d 185, 192-193 [1981] [internal quotation marks and citations omitted]).

Here, to the extent the claims against Highland in the new complaint implicate events alleged to have taken place before the filing of the original complaint, res judicata applies. That is because UBS's claims against Highland in the original action and in this action all arise out of the restructured warehousing transaction. While the claim against Highland in the original action was based on Highland's alleged obligation to indemnify UBS for actions taken by the affiliated funds, and the claims against Highland in the second action arose out of Highland's alleged manipulation of those funds, they form a single factual grouping. Both are related to the same business deal and to the diminution in the value of the securities placed with UBS as a result of that deal. Thus, the claims form a convenient trial unit. Moreover, it can hardly be said that the claims in the two actions are so unrelated that reasonable business people, not to mention the parties themselves, would have expected them to be tried separately (see Smith, 54 NY2d at 192-193). Also, we note that, when seeking permission to amend the complaint, UBS itself asserted that "the new causes of action arise out of the same or related circumstances and events as UBS's pending claims."

Further, the Court of Appeals' holding in Xiao Yang Chen v Fischer (6 NY3d 94 [2005]) [*6]does not support UBS's position. Nor does it represent a shift in res judicata jurisprudence, as UBS argues. The circumstances of this case bear no resemblance to those in Xiao Yang Chen, which involved a woman who, in a previously filed separate action, was granted a divorce on the ground of cruel and inhuman treatment. In the divorce action, the plaintiff supported her cruel and inhuman treatment claim with an allegation that her husband had slapped her, causing injury. While the divorce action was pending, the plaintiff commenced a separate personal injury action seeking damages for the intentional infliction of emotional distress and injuries arising out of the alleged assault. In finding that res judicata did not bar the personal injury action, the Court of Appeals noted that the two actions sought different types of relief and did not constitute a convenient trial unit. The Court of Appeals also noted other significant distinctions, such as the facts that divorce actions are typically decided by a judge and that attorneys in personal injury actions may be compensated by a contingency fee, and the policy consideration of expediting divorce proceedings. None of those considerations applies here, where the action seeks money damages arising only in connection with a commercial transaction. 

While we have concluded that res judicata bars the claims in this action, we still must address UBS's assertion that it would be fundamentally unfair to apply res judicata under the circumstances of this case. UBS bases this argument primarily on the contention that it would have moved to amend the complaint in the original action while that action was still in existence (i.e., before this Court dismissed it), but for the necessity that it comply with the Commercial Part rules requiring that it first seek permission in a letter. However, this argument fails because, even had they made such a motion, the ultimate result would have been the same. As evidenced by the affidavit of its former employee, UBS was aware of the facts that support the claims in this action as long ago as November 2008. That was before UBS filed the original action.

Indeed, the evidence that the former employee admits had been gathered by UBS at that time supports all the claims asserted against Highland in this action. That UBS received additional evidence in the document production that Highland made shortly before UBS sought to amend its complaint is irrelevant. The proper inquiry for res judicata purposes is when UBS could have raised a cause of action, not when it had enough evidence to prove the claim at trial (see Castellano v City of New York, 251 AD2d 194, 195 [1998], lv denied 92 NY2d 817 [1998], cert denied 526 US 1131 [1999]). In this regard, we note that, based on what it admits it knew in November 2008, UBS could have pleaded its fraud claim with the requisite particularity at that time, since the facts available would have permitted a "reasonable inference of the alleged conduct" (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]). Because UBS could have asserted the instant claims in the original complaint or moved to amend well before that complaint was dismissed by this Court, we are not persuaded that the Rules of the Commercial Part affected the eventual result. Nevertheless, to the extent that the third and fourth causes of action, alleging breach of the covenant of good faith and fair dealing and fraudulent conveyance, respectively, rely on conduct alleged to have occurred after the commencement of the prior action, such claims should be allowed.

Nor do we share the motion court's concern that it is unfair to apply res judicata where Highland remains a party to the action by dint of its counterclaims. It would likewise be unjust to hold that a defendant that chooses to assert a counterclaim forfeits its right to assert the defense of res judicata with respect to the main claims. Indeed, to so hold would deal a blow to judicial economy since counterclaims are not compulsory in New York (67-25 Dartmouth St. Corp. v Syllman, 29 AD3d 888, 889 [2006]), and defendants would merely assert their own [*7]claims in separate actions to avoid the application of res judicata.

Kvest LLC v Cohen, 2011 NY Slip Op 05984 (1st Dept., 2011)

Plaintiff is not barred by the doctrine of judicial estoppel from asserting that the disclaimer is valid because it did not prevail in the declaratory judgment action (see Rothstein & Hoffman Elec. Serv., Inc. v Gong Park Realty Corp., 37 AD3d 206, 207 [2007], lv denied 8 NY3d 812 [2007]; Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1998], lv dismissed 92 NY2d 962 [1998]). However, contrary to plaintiff's argument, the doctrine of collateral estoppel does not bind defendants to the declaratory judgment court's determination that defendants did not timely notify the carrier of the claim letter. Defendants were not parties to that action. The doctrine of collateral estoppel is binding only upon parties or their privies who have had a full and fair opportunity to litigate issues determined in prior proceedings (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-486 [1979]).

Defendants state in their affidavit that they mailed a copy of the claim letter to the carrier [*2]on May 6, 2004, two days after they received it from plaintiff. However, a notice of occurrence/claim form prepared by defendants on October 2, 2004 indicates that the claim had not previously been reported. This raises a triable issue of fact as to whether defendants timely notified the carrier of the claim letter. 

Contrary to defendants' assertion, the damages recoverable in this action can include plaintiff's reasonable attorneys' fees incurred in defending the carrier's declaratory judgment action in its effort to mitigate its damages (see Martini v Lafayette Studio Corp., 273 AD2d 112, 114 [2000]). On the other hand, the breach of fiduciary duty cause of action was properly dismissed as the facts establish that the parties had nothing more than a typical insurance broker-customer relationship (see e.g. Murphy v Kuhn, 90 NY2d 266, 270-271 [1997]).

Equitable estoppel

Giannetto v Knee, 82 AD3d 1043 (2nd Dept. 2011)

The Supreme Court erred, however, in granting that branch of the defendants' motion which was for summary judgment dismissing the malpractice cause of action against Knee on the basis of the statute of limitations. Although the defendants established, prima facie, that the action was commenced well beyond the 2½-year statute of limitations applicable to claims alleging dental malpractice (see CPLR 214-a), the plaintiff raised a triable issue of fact as to whether Knee should be equitably estopped from raising the defense of the statute of limitations. "Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the defendant" (Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553 [2006]; see Simcuski v Saeli, 44 NY2d at 448-449). Whether equitable estoppel applies is generally a question of fact (see Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 755 [2005]), and a mere failure to disclose malpractice or diagnose a condition does not give rise to equitable estoppel (see Rizk v Cohen, 73 NY2d 98 [1989]; Simcuski v Saeli, 44 NY2d at 450; Reichenbaum v Cilmi, 64 AD3d 693, 695 [2009]; Bevinetto v Steven Plotnick, M.D., P.C., 51 AD3d 612, 614 [2008]; Dombroski v Samaritan Hosp., 47 AD3d 80 [2007]; Coopersmith v Gold, 172 AD2d 982, 983 [1991]). Here, the plaintiff's sworn allegations raised a triable issue of fact as to whether Knee concealed his malpractice by knowingly misrepresenting her condition and by bonding tooth number 21, a procedure that the plaintiff alleges he knew was not effective (see Vigliotti v North Shore Univ. Hosp., 24 AD3d at 755; Szajna v Rand, 131 AD2d 840, 841 [1987]). Additionally, the plaintiff raised a triable issue of fact as to whether she commenced the action within a reasonable time after her discovery of the alleged malpractice (see Edmonds v Getchonis, 150 AD2d 879, 882 [1989]).