Category: CPLR

Mutual Mistake

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Asset Mgt. & Capital Co., Inc. v Nugent, 2011 NY Slip Op 05438 (App. Div., 2nd 2011)

"Stipulations of settlement are favored by the courts and not lightly cast aside . . . . Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, [mutual] mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (Hallock v State of New York, 64 NY2d 224, 230 [citations omitted]). "For a party to be entitled to reformation of a contract on the ground of mutual mistake, the mutual mistake must be material, i.e., it must involve a fundamental assumption of the contract" (True v True, 63 AD3d 1145, 1147). "A party need not establish that the parties entered into the contract because of the mutual mistake, only that the material mistake . . . vitally affects a fact or facts on the basis of which the parties contracted'" (True v True, 63 AD3d at 1147, quoting Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d 203, 214). Moreover, "proof of [mutual] mistake must be of the highest order,' [and] must show clearly and beyond doubt that there has been a [mutual] mistake' and . . . must show with equal clarity and certainty the exact and precise form and import that the instrument ought to be made to assume, in order that it may express and effectuate what was really intended by the parties'" (Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d at 215, quoting 13 Williston, Contracts [3d ed], § 1548, at 125; see Amend v Hurley, 293 NY 587, 595). "Because the thrust of a reformation claim is that a writing does not set forth the actual agreement of the parties, generally neither the parol evidence rule nor the Statute of Frauds applies to bar proof, in the form or parol or extrinsic evidence, of the claimed agreement" (Chimart Assoc. v Paul, 66 NY2d 570, 573).

Here, the plaintiffs established that the stipulation of settlement contains a mutual mistake. Specifically, the Condo Analysis Summary (hereinafter the summary) prepared by Michael T. Nugent, sued herein as Michael I. Nugent (hereinafter the defendant), which the parties agree  formed the basis of the stipulation of settlement, reflects that the defendant's expenditures above his one-half ownership interest in the subject premises totaled $83,925. Moreover, throughout this litigation—until he opposed the plaintiffs' motion to reform the stipulation—the defendant consistently asserted, in pertinent part, that he was entitled to "reimbursement of one half of the amounts he has advanced [$83,925] plus interest thereon." As such, the plaintiffs established that, in the stipulation, the parties intended for the defendant to receive, from the proceeds of sale of the subject premises, and before considering other adjustments, one half of $83,925, or $41,962.50.

However, both the stipulation and the summary are silent with respect to the fact that a $20,000 payment was made by the plaintiffs in February 2004 to pay down the mortgage principal on the subject real property. Since the stipulation properly characterized the $20,000 paid by the plaintiffs as a "reimbursement" to the defendant, and the parties intended first to credit the defendant for one half of the expenditures he incurred before crediting the plaintiffs for the $20,000 reimbursement, the Supreme Court properly determined that the amounts ultimately credited to the parties in the stipulation were the product of a mutual mistake, and properly granted the plaintiffs' motion to reform the stipulation so as to direct the defendant to pay to the plaintiffs the sum of $10,000, representing the plaintiffs' overpayment to the defendant.

 

 

Very Interesting 3215 decision: half sum certain, half not

CPLR 3215

Stephan B. Gleich & Assoc. v Gritsipis, 2011 NY Slip Op 05483 (App. Div., 2nd 2011)

III. The Clerk's Judgment Under CPLR 3215(a)

The defendant's argument that the clerk of the court lacked authority to enter a judgment is raised for the first time on appeal. However, where, as here, an argument presents an issue of law appearing on the face of the record which could not have been avoided if raised at the proper juncture, it may be considered by an appellate court (see Parry v Murphy, 79 AD3d 713; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d at 673; Chrostowski v Chow, 37 AD3d 638, 639; Beepat v James, 303 AD2d 345, 346; Hanna v Ford Motor Co., 252 AD2d 478). The nature of this appeal warrants the exercise of our discretion in reaching on its merits the issue of the propriety of the clerk's judgment.

CPLR 3215(a) allows a party to seek a default judgment by application to the clerk if the claim is "for a sum certain or for a sum which can by computation be made certain" (CPLR 3215[a]). Where the clerk is presented with the requisite proof, he or she "shall enter judgment for the amount demanded in the complaint or stated in the [summons with notice], plus costs and interest" (CPLR 3215[a]). While the statute directs that the amount of the judgment shall be the amount demanded in the complaint or summons with notice, the language has been interpreted by the Court of Appeals as allowing the plaintiff to elect a lesser sum (see McClelland v Climax Hosiery Mills, 252 NY 347, 352 [interpreting a similar predecessor statute, CPA 485]).

The limitation of clerk's judgments to claims for a "sum certain" "contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due" (Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572; Pikulin v Mikshakov, 258 AD2d 450, 451). The statute is intended to apply to only the most liquidated and undisputable of claims, such as actions on money judgments and negotiable instruments (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d at 572; Pikulin v Mikshakov, 258 AD2d at 451; Siegel, David D., NY Practice, at 477 [4th ed]).

On the face of the plaintiff's 1993 summons with notice, the plaintiff did not allege the existence of a written retainer agreement, and did not specifically describe the nature of the action as one for breach of contract. Furthermore, no copy of a retainer agreement was annexed to the affidavit of facts submitted to the clerk. The claim "to recover for legal services" may be viewed as stating a cause of action sounding in quantum meruit, for which there must be evidence of (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services allegedly rendered (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 19; Cruz v McAneney, 31 AD3d 54, 59; Citibank, N.A. v Walker, 12 AD3d 480, 481). The cause of action alleging unjust enrichment, which is clearly stated in the summons with notice, requires proof that (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d at 19; Cruz v McAneney, 31 AD3d at 59; Citibank, N.A. v Walker, 12 AD3d at 481). Quantum meruit and unjust enrichment theories are equitable in nature, and are appropriate only if there is no valid and enforceable contract between the parties covering the dispute at issue (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d at 20; Hochman v LaRea, 14 AD3d 653, 654-655; Zuccarini v Ziff-Davis Media, 306 AD2d 404, 405; Old Salem Dev. Group v Town of Fishkill, 301 AD2d 639). Such causes of action are not for a sum certain and, therefore, are not eligible for the entry of a clerk's judgment under CPLR 3215(a) (see Ayers Mem. Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty to Animals, 17 AD3d 904, 904-905 [quantum meruit]; Maxwell v First Port Jefferson Corp., 31 AD2d 813 [quantum meruit]). 

By contrast, an account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and the balance due (see Landau v Weissman, 78 AD3d 661; Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869). By retaining billing statements and failing to object to the account within a reasonable time, the recipient of the bill implies that he or she agrees with the sender regarding the amount owed (see Rodkinson v Haecker, 248 NY 480, 485; American Express Centurion Bank v Cutler, 81 AD3d 761, 762; Landau v Weissman, 78 AD3d at 661; O'Connell & Aronowitz v Gullo, 229 AD2d 637, 638; Ruskin, Moscou, Evans & Faltischek v FGH Realty Credit Corp., 228 AD2d 294, 295-296; Shea & Gould v Burr, 194 AD2d 369, 370; Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626; Brown Rudnick Berlack Israels LLP v Zelmanovitch, 11 Misc 3d 1090[A], 2006 NY Slip Op 50800[U], *5). Generally, an account stated may qualify for relief under CPLR 3215 (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524; Imperial Medical Supply & Surgical Sup. v Country Wide Ins. Co., 2002 NY Slip Op 50352[U] n 6; cf. Commissioners of State Ins. Fund v Khondoker, 55 AD3d 525).

The Appellate Division, First Department, directly addressed the question of whether a clerk may enter a judgment pursuant to CPLR 3215(a) when one or more causes of action in a plaintiff's pleading is for a sum certain and one or more other causes of action is not. It held, in Geer, Du Bois & Co. v Scott & Sons Co. (25 AD2d 423), that a clerk is without authority to enter a judgment under such circumstances (id.; see Gaynor & Bass v Arcadipane, 268 AD2d 296; Bouker Contr. Co. v Neale, 161 App Div 617). Although the First Department did not explain its reasoning, we find its result to be sound. A clerk entering a judgment for a sum certain, in actions where other nonconforming causes of action also are alleged, would, in effect, be severing the nonconforming causes of action from the pleading or, viewed another way, be rendering academic the nonconforming causes of action. Such action is more in the nature of a judicial function than a ministerial function of the type contemplated for a clerk by CPLR 3215(a) (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d at 572). Accordingly, as the plaintiff's summons with notice asserted equitable causes of action that were not, by definition, for a sum certain, the Nassau County Clerk was without statutory authority to render a clerk's judgment (see Geer Du Bois & Co. v Scott & Sons, Inc., 25 AD2d at 423; Bouker Contr. Co. v Neale, 161 App Div at 617).

Our finding that the clerk's judgment is void raises a secondary issue, namely, whether vacating the clerk's judgment also requires the vacatur of the underlying finding that the defendant was in default or, alternatively, whether upon vacatur, the underlying default finding remains intact and the matter should be remitted to the Supreme Court only to conduct an inquest on damages. In certain cases, the Appellate Divisions have vacated the clerks' judgments only and remitted the matters for inquests (see Fidelity Natl. Tit. Ins. Co. v Valtech Research, Inc., 73 AD3d 686, 687; General Elec. Tech. Servs. Co. v Perez, 156 AD2d 781, 784; Woodward v Eighmie Moving & Stor., 151 AD2d 892, 893; Falso v Norton, 89 AD2d 635, 635-636). In other cases, the Appellate Divisions made clear that the vacatur of the clerks' judgments has the effect of also vacating the underlying finding that the defendants were in default (see Gaynor & Bass v Arcadipane, 268 AD2d at 297; Gibbs v Hoot Owl Sportsman's Club, 257 AD2d 942, 943; Action Lawn & Landscaping v East Glenville Fire Dist., 254 AD2d 585, 587; Jannon v Van Buskirk, 227 AD2d 844, 844-845; Maxwell v First Port Jefferson Corp., 31 AD2d at 813; Geer, Du Bois & Co. v Scott & Sons Co., 25 AD2d at 423).

These seemingly inconsistent cases can be reconciled. In the first set of cases, the issue of whether to vacate the defendants' defaults pursuant to CPLR 5015, on the basis that a reasonable excuse and a potentially meritorious defense were presented, was before the Courts, and the Appellate Divisions concluded in each instance that the defendants failed to establish either reasonable excuses for their respective defaults or potentially meritorious defenses. Since there was no basis to vacate the underlying defaults on the papers submitted in those cases, the only procedures that remained to be undertaken, where the clerks' judgments were found to be unauthorized, were inquests on damages (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d at 573-574; General Elec. Tech. Servs. Co. v Perez, 156 AD2d 781; Woodward v Eighmie Moving & Stor. 151 AD2d at 893; Falso v Norton, 89 AD2d at 635-636; Fidelity Natl. Tit. Ins. Co. v Valtech Research, Inc., 73 AD3d at 687). By contrast, in the other set of cases, the vacatur of the defendants' underlying defaults was not raised as an issue (see Gibbs v Hoot Owl Sportsman's Club, 257 AD2d at 943; Maxwell v First Port Jefferson Corp., 31 AD2d at 813; Geer, Du Bois & Co. v Scott & Sons Co., 25 AD2d at 423), the defendants' defaults were found on appeal to be excusable so that the actions reverted to their pre-default status (see Gaynor & Bass v Arcadipane, 268 AD2d at 297; Action Lawn & Landscaping v East Glenville Fire Dist., 254 AD2d at 587), or the defendant's default was unresolved upon further application to the Supreme Court to permit service of a late answer (see Jannon v Van Buskirk, 227 AD2d at 844-845). Accordingly, where a defendant's default is found to be excusable, or at least subject to further proceedings at the Supreme Court, the clerk's judgment must be vacated, along with any underlying finding that the defendant was in default.

Here, the Supreme Court found that in the 1993 action, the defendant has demonstrated neither a reasonable excuse for his underlying default nor a potentially meritorious defense to that action. Its finding, which we are affirming on appeal, establishes the law of the case that the defendant is in default and is not entitled to vacatur of the judgment pursuant to CPLR 5015(a). The only remaining action to be undertaken beyond the vacatur of the clerk's judgment is the conduct of a damages inquest on any cause of action asserted in the 1993 summons with notice (see General Elec. Tech. Servs. Co. v Perez, 156 AD2d at 784; Falso v Norton, 89 AD2d at 635-636; Fidelity Natl. Tit. Ins. Co. v Valtech Research Inc., 73 AD3d at 687).

We note that pursuant to CPLR 3012(d), a defendant who has failed to timely appear in an action may move to compel the plaintiff's acceptance of an untimely answer "upon such terms as may be just and upon a showing of reasonable excuse for [the] delay or default" (CPLR 3012[d]; see New York & Presbyt. Hosp. v Auto One Ins. Co., 28 AD3d 441; Beecher v State Farm Mut. Auto. Ins. Co., 186 AD2d 1012). We find that the showing of reasonable excuse that a defendant must establish to be entitled to serve a late answer under CPLR 3012(d) is the same as that which a defendant must make to be entitled to the vacatur of a default under CPLR 5015(a)(1). Since the defendant here has been found to lack a reasonable excuse for his failure to timely appear on the 1993 action, the law of the case forecloses any further remedy under CPLR 3012(d), again leading to the conclusion that an inquest on damages is all that remains for the Supreme Court (see General Elec. Tech. Servs. Co. v Perez, 156 AD2d at 784; Falso v Norton, 89 AD2d at 635-636; cf. Jannon v Van Buskirk, 227 AD2d at 844-845).

We do not suggest that plaintiffs who assert alternative legal and equitable causes of action are always foreclosed from obtaining clerks' judgments under CPLR 3215(a). Plaintiffs' attorneys do not know at the time they draft summonses with notice or complaints that the defendant will fail to appear and answer, and accordingly, all potential causes of action will typically be included. Plaintiffs who later seek a clerk's judgment, instead of applying to the court itself, may be able to avail themselves of CPLR 3217(a)(1), which allows the voluntary discontinuance of any claim, without leave of court, at any time before a responsive pleading is served or within 20 days after service of the pleading asserting the claim, whichever is earlier. If plaintiffs seeking to discontinue non-sum certain causes of action do not meet the time requirements of CPLR 3217(a)(1), they could then move before the court to discontinue pursuant to CPLR 3217(b). It would seem, however, that seeking court intervention to discontinue non-sum certain causes of action would defeat the purpose of seeking a clerk's judgment in the first instance. In any event, assuming the time requirements for a voluntary discontinuance are met, a plaintiff's affidavit of facts, submitted in support of the entry of the clerk's judgment, can include an expressed voluntary discontinuance of all causes of action except for the cause of action seeking a sum certain. Upon the voluntary discontinuance of all claims that do not fall within the scope of CPLR 3215(a), the clerk would then be authorized to enter a judgment upon the submitted proof of the sum certain amount demanded (cf. Time Warner City Cable v TriState Auto, 5 AD3d 153). Here, the plaintiff did not seek to discontinue the non-sum certain causes of action prior to submitting its affidavit of facts to the clerk, rendering the clerk's judgment infirm.

Given the defendant's default in this action and other circumstances in the record, the 1994 clerk's judgment affected by this opinion and order shall stand as security pending the assessment of damages and, during that time, the plaintiff shall be enjoined from enforcing that judgment (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d at 574; Woodward v Eighmie Moving & Stor., 151 AD2d at 893).

The Civil Court can handle it: CPLR R. 3211(a)(4)

CPLR R. 3211(a)(4) there is another action pending between the same parties for the same cause of action in a court of any state or the United States

DAIJ, Inc. v Roth, 2011 NY Slip Op 05446 (App. Div., 2nd 2011)

Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same (see Whitney v Whitney, 57 NY2d 731, 732; Kent Dev. Co. v Liccione, 37 NY2d 899, 901; Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 622; Liebert v TIAA-CREF, 34 AD3d 756, 757). "The critical element is that both suits arise out of the same subject matter or series of alleged wrongs" (Cherico, Cherico & Assoc. v Midollo, 67 AD3d at 622 [internal quotation marks omitted]; see Kent Dev. Co. v Liccione, 37 NY2d at 901).

This action and an action pending in the Civil Court of the City of New York both arise from the same subject matter and alleged wrongs, and involve substantial identity of the parties and similarity of claims. The plaintiff's claims may be fully litigated in the Civil Court action. Accordingly, on the record presented, the Supreme Court providently exercised its discretion in granting the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(4) (see Cherico, Cherico & Assoc. v Midollo, 67 AD3d at 623; Liebert v TIAA-CREF, 34 AD3d at 757).

3216

CPLR R. 3216 Want of prosecution

Umeze v Fidelis Care N.Y., 2011 NY Slip Op 04770 (Ct. App. 2011)

Supreme Court abused its discretion by declining to grant defendants' motion to  dismiss without condition. Plaintiff failed to establish a (1) justifiable excuse for his failure to timely file a note of issue and (2) meritorious cause of action (see CPLR 3216 [e]; see also Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]).

Banik v Evy Realty, LLC, 2011 NY Slip Op 04185 (App. Div., 2nd 2011)

On September 25, 2009, the Supreme Court, sua sponte, dismissed the action. By notice of motion dated February 3, 2010, the plaintiffs moved, in effect, to vacate the dismissal of the action and to restore the action to active status. The appellant opposed the plaintiffs' motion. In an order dated April 14, 2010, the Supreme Court, inter alia, denied those branches of the plaintiffs' motion which were, in effect, to vacate the dismissal and to restore the action as against the defendant Evy Realty, LLC (hereinafter Evy), to active status. In an order dated August 4, 2010, however, the Supreme Court granted the plaintiffs' motion for leave to reargue and, upon reargument, granted those branches of the plaintiffs' motion which had previously been denied. Evy appeals from the order dated August 4, 2010.

Neither the order dated April 14, 2010, nor the order appealed from contain any explanation for the original denial of those branches of the plaintiffs' motion which were, in effect, to vacate the dismissal and to restore the action as against Evy to active status or the subsequent granting, upon reargument, of those branches of the plaintiffs' motion. In addition, the record is not clear as to why the action was dismissed on September 25, 2009, in the first instance. The record]is devoid of any evidence that there was a conference scheduled for September 25, 2009, and there was no order dismissing the complaint pursuant to 22 NYCRR 202.27. Thus, contrary to Evy's contentions, 22 NYCRR 202.27 could not have provided the basis for the order dated April 14, 2010, denying those branches of the plaintiffs' motion which were to vacate the dismissal and restore the action to active status with respect to it (see Mitskevitch v City of New York, 78 AD3d 1137, 1138; Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511; Murray v Smith Corp., 296 AD2d 445, 446).

Furthermore, while the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for the dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 502-503; Murray v Smith Corp., 296 AD2d at 447; Schwartz v Nathanson, 261 AD2d 527, 528; Schuering v Stella, 243 AD2d 623, 624). Here, a compliance conference order dated December 9, 2008, which set a date for the filing of the note of issue, did not constitute a valid 90-day demand because there was no warning that failure to file the note of issue by June 5, 2009, would serve as a basis for dismissal under CPLR 3216 (see Sanchez v Serje, 78 AD3d 1155, 1156; Ratway v Donnenfeld, 43 AD3d 465; Patel v MBG Dev., Inc., 41 AD3d 682, 683). Moreover, a so-ordered stipulation dated September 24, 2009, which extended the plaintiffs' time to file a note of issue until January 19, 2010, could not be deemed a 90-day demand since it failed to advise the plaintiffs that the failure to comply therewith would serve as the basis for a motion to dismiss the action (see Wasif v Khan, 82 AD3d 1084; Heifetz v Godoy, 38 AD3d 605; Wollman v Berliner, 29 AD3d 786).

Accordingly, upon reargument, the Supreme Court properly granted those branches of the plaintiffs' motion which were, in effect, to vacate the dismissal of the action as against Evy and to restore the action as against Evy to active status.

 

 

Supervising disclosure: CPLR § 3104

CPLR § 3104 Supervision of Disclosure

Etzion v Etzion, 2011 NY Slip Op 04197 (App. Div., 2nd 2011)

Both the underlying order dated January 4, 2010, limiting discovery, as well as the order appealed from, which denied the plaintiff's motion, in effect, to vacate the determination set forth in the order dated January 4, 2010, were made by a referee whom the parties had stipulated would be assigned the task of supervising pretrial discovery in this action (see CPLR 3104[b]). Pursuant to CPLR 3104(d), a party may make a motion seeking review of a referee's order regarding discovery, which "shall be . . . made in the court in which the action is pending within five days after the order is made." The record indicates that the plaintiff did not seek review, by the trial court, of either the order dated January 4, 2010, or the order appealed from, as required by CPLR 3104(d). "The specific language of CPLR 3104(d) mandating review in the court in which the action is pending precludes this court from entertaining a direct appeal from an order of a judicial hearing officer designated as a referee to supervise disclosure" (Crow-Crimmins-Wolff & Munier v County of Westchester, 110 AD2d 871, 873). Accordingly, the appeal must be dismissed (see Krygier v Airweld, Inc., 176 AD2d 701; Crow-Crimmins-Wolff & Munier v County of Westchester, 110 AD2d at 872-873; Matter of Westchester Tit. & Trust Co., 260 App Div 1055).

 

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

CPLR  R. 4401 Motion for judgment during trial

CPLR § 3101 Scope of disclosure

CPLR § 3103

Motion not made on notice

CPLR R. 3108 Written questions; when permitted

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Does CPLR R. 3212(f) work with CPLR R. 3123

CPLR R. 3212 Motion for summary judgment

CPLR § 3213 Motion for summary judgment in lieu of complaint

Citibank, N.A. v Silverman, 2011 NY Slip Op 04810 (App. Div., 1st 2011)

Assuming, arguendo, that CPLR 3212(f) applies to an action commenced under CPLR 3213, defendant's affidavit failed to show that "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]; see also Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 103 [2006], lv denied 8 NY3d 804 [2007]).

The motion court properly dismissed defendant's counterclaim alleging a violation of the Bank Holding Company Act (BHCA), (12 USC § 1972[1][C]). When a bank engages in traditional banking practices, it cannot be liable under the BHCA (see BC Recreational Indus. v First Natl. Bank of Boston, 639 F2d 828 [1st Cir 1980]). "The anti-tying provisions [of the BHCA] were not intended to interfere with or impede appropriate traditional banking activities through which banks safeguard the value of their investment" (In re Adelphia Communications Corp., 365 BR 24, 76 [SD NY 2007] citing Nordic Bank PLC v Trend Group Ltd., 619 F Supp 542, 554 [SD NY 1985]).

To demand additional collateral from a debtor who is in default in exchange for extending that debtor's letter of credit is well within traditional banking practices. Indeed, it is commonplace (see F.D.I.C. v Blankinship, 986 F2d 1427 [10th Cir. 1992] ["As a condition to renegotiating debts, banks can properly require additional collateral and impose other terms designed to ensure payment"] [citations omitted]). That the demand for additional collateral concerned the property of other family members does not take it out of the realm of traditional banking practices (see Sanders v First Natl. Bank & Trust Co., 936 F2d 273, 278 [6th Cir. 1987]).

Defendant's counterclaim for breach of the implied covenant of good faith and fair dealing fails because, as we have found, there was no oral forbearance agreement (see Societe Nationale D'Exploitation Industrielle Des Tabacs Et Allumettes v Salomon Bros. Intl., 251 AD2d 137 [1998], lv denied 95 NY2d 762 [2000]). Even if, arguendo, plaintiff orally agreed to forbear while the parties negotiated, we would still reject defendant's claim of bad faith on the part of plaintiff (see Massachusetts Mut. Life Ins. Co. v Gramercy Twins Assoc., 199 AD2d 214, 218 [1993]).Defendant's counterclaims for negligent misrepresentation and breach of fiduciary duty also fail. His conclusory allegations that his relationship with plaintiff was more than that of lender and borrower and that he relied on plaintiff's advice are insufficient to raise the inference that this bank-borrower relationship was special (see e.g. Korea First Bank of N.Y. v Noah Enters., Ltd., 12 AD3d 321, 323 [2004], lv denied 4 NY3d 710 [2005]). Even if, arguendo, there were a special relationship between the parties, defendant failed to raise the inference that he reasonably relied on incorrect information imparted by plaintiff (see J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007]; Global Mins., 35 AD3d at 99; P. Chimento Co. v Banco Popular de Puerto Rico, 208 AD2d 385, 385 [1994]).

Defendant also fails to make a prima facie case of age discrimination under the ECOA. Even if plaintiff raised defendant's age as an issue during negotiations, it subsequently offered him a term sheet and a loan modification agreement. As for defendant's claim of discrimination on the basis of marital status, essentially based on 12 CFR 202.7(d)(5), his own affidavit and his lawyer's affidavit show that plaintiff did not require his wife to furnish collateral. Rather, plaintiff gave defendant various options, one of which was to give plaintiff a lien against his cooperative apartment, that he co-owned with his wife.

Bond v DeMasco, 2011 NY Slip Op 04615 (App. Div., 2nd 2011)

Contrary to the plaintiffs' contention, the Supreme Court properly denied, as premature, their motion for summary judgment on the issue of liability (see CPLR 3212[f]; Lambert v Sklar, 61 AD3d 939, 940; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). The plaintiffs moved for summary judgment on the issue of liability prior to the parties' depositions. The defendants did not have an adequate opportunity to conduct discovery (see Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785). Moreover, the plaintiff Anne F. Bond and the defendant Rita J. DeMasco submitted, among other things, affidavits containing certain discrepancies pertaining to the circumstances of the subject accident (see Gardner v Cason, Inc., 82 AD3d 930; Cardone v Poidamani, 73 AD3d 828).

CPLR § 1021: Substitution

CPLR § 1015 Substitution upon death

CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal

Borruso v New York Methodist Hosp., 2011 NY Slip Op 04616 (App. Div., 2nd 2011)

The plaintiffs commenced this action in 1998, based on medical services rendered in 1997. The plaintiff Gregory Borruso (hereinafter the decedent) died in 2001. In March and April 2009, the defendants separately moved pursuant to CPLR 1021 to dismiss the complaint for the plaintiffs' failure to timely substitute a representative from the decedent's estate for him as party plaintiff. At the time the defendants made their separate motions, it had been approximately 12 years since the medical services complained of were rendered, 11 years since the plaintiffs commenced this action, 8 years since the decedent's death, 6 years since letters of administration were issued to the plaintiff Barbara Borruso (hereinafter the surviving plaintiff) as administrator of the estate, and 4 years since the plaintiffs' attorney, by his own admission, learned that a bankruptcy stay resulting from a bankruptcy filing of the insurer of the defendant Gerard K. Hanley, had been lifted. In an order dated September 29, 2009, the Supreme Court granted the defendants' separate motions. The judgment appealed from, entered upon the order, is in favor of the defendants and against the plaintiffs, dismissing the complaint. We affirm. 

CPLR 1021 provides, in pertinent part, "[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate." " CPLR 1021 requires a motion for substitution to be made within a reasonable time'" (Reed v Grossi, 59 AD3d 509, 511, quoting McDonnell v Draizin, 24 AD3d 628, 628). " The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has merit'" (Reed v Grossi, 59 AD3d at 511, quoting McDonnell v Draizin, 24 AD3d at 628-629; see Rubino v Krasinski, 54 AD3d 1016, 1017; Johnson v Trivedi, 41 AD3d 1259, 1260; Bauer v Mars Assoc., 35 AD3d 333, 334).

Here, the surviving plaintiff failed to move within a reasonable time to substitute a representative of the decedent's estate for the decedent as party plaintiff in this action. Her proffered explanation of law office failure—that the case "fell through the cracks"—is vague and unsubstantiated and insufficient to constitute a reasonable excuse (see Knowles v Schaeffer, 70 AD3d 897, 898). Also without merit is the surviving plaintiff's explanations related to the bankruptcy stay and attempts to schedule an additional deposition. As her attorney acknowledges, he knew the bankruptcy stay was no longer in effect as of March 2005, but the surviving plaintiff had not moved for substitution by the time the defendants filed their motions four years later. As for the surviving plaintiff's efforts to schedule an additional deposition, such matters would in no way serve as an impediment to moving for substitution. In light of the lack of diligence on the part of the surviving plaintiff and the prejudice to the defendants under the circumstances of this case, the Supreme Court properly determined that the surviving plaintiff failed to move within a reasonable time to substitute a representative of the estate for the decedent, and, accordingly, granted the defendants' separate motions pursuant to CPLR 1021 to dismiss the complaint (see McDonnell v Draizin, 24 AD3d at 628-629; Washington v Min Chung Hwan, 20 AD3d 303, 305; Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069; Palmer v Selpan Elec. Co., 5 AD3d 248, 248; Suciu v City of New York, 239 AD2d 338, 338; compare Reed v Grossi, 59 AD3d at 511; Rubino v Krasinski, 54 AD3d at 1017).

Disclosure, lots of it

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR § 4504. Physician, dentist, podiatrist, chiropractor and nurse

CPLR R. 3120 Discovery and production of documents and things for inspection, testing, copying or photographing

CPLR § 3101 Scope of disclosure

CPLR R. 3124 Failure to disclose; motion to compel disclosure

22 NYCRR 202.21 Note of issue and certificate of readiness

Congel v Malfitano, 2011 NY Slip Op 04406 (App. Div., 2nd 2011)

Contrary to the defendant's contentions, the Supreme Court providently exercised its discretion in denying that branch of his cross motion which was for leave to amend his answer to assert counterclaims pursuant to Partnership Law §§ 73 and 74. Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b]), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see Brooks v Robinson, 56 AD3d 406, 407; Scofield v DeGroodt, 54 AD3d 1017, 1018; Lucido v Mancuso, 49 AD3d 220, 227). Here, the defendant's proposed amended counterclaims were patently devoid of merit.

CPLR 3101(a) provides for, inter alia, "full disclosure of all matter material and necessary in the prosecution or defense of an action." Although the phrase "material and necessary" must be "interpreted liberally" in favor of disclosure so long as the information sought meets the test of "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69-70), a party does not have the right to uncontrolled and unfettered disclosure (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408, 410; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531). Further, the Supreme Court has broad discretion over the supervision of disclosure, and its determination will not be disturbed absent an improvident exercise of discretion (see Spodek v Neiss, 70 AD3d 810, 810; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694, 695; Cabellero v City of New York, 48 AD3d 727, 728).

On the defendant's prior appeal, this Court remitted the matter to the Supreme Court, Dutchess County, for, inter alia, further proceedings on the issue of damages caused to the plaintiffs by the defendant's wrongful dissolution of the Poughkeepsie Galleria Company Partnership, as well as a determination of the value of the defendant's interest in that partnership at the time of the wrongful dissolution (see Congel v Malfitano, 61 AD3d 810; Partnership Law § 69[2][c][II]). Given that the remaining issues to be resolved in this matter are narrow (see Partnership Law § 69[2][c][II]), the Supreme Court did not improvidently exercise its discretion in limiting the scope of discovery and providing for an expedited discovery schedule.

Thompson v Dallas BBQ, 2011 NY Slip Op 04451 (App. Div., 2nd 2011)

Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed'" (Mazza v Seneca, 72 AD3d 754, 754, quoting CPLR 3126). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126[3]; Kihl v Pfeffer, 94 NY2d 118, 122-123; Bernal v Singh, 72 AD3d 716). The drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands is willful and contumacious (see CPLR 3126[3]; Kyung Soo Kim v Goldmine Realty, Inc., 73 AD3d 709; Moray v City of Yonkers, 72 AD3d 766).

Here, there was no such clear showing that the defendants' conduct was willful and contumacious (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to strike the defendants' answer.

Gille v Long Beach City School Dist., 2011 NY Slip Op 04202 (App. Div., 2nd 2011)

While it is unclear whether the school district negligently lost or intentionally destroyed key evidence (see Denoyelles v Gallagher, 40 AD3d 1027; Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343), it is uncontested that the school district is unable to locate the window shade, the very instrumentality giving rise to the infant plaintiff's injuries. However, because the determination of spoliation sanctions is within the broad discretion of the trial court (see Iamiceli v General Motors Corp., 51 AD3d 635; Barnes v Paulin, 52 AD3d 754; Dennis v City of New York, 18 AD3d 599), the matter must be remitted to the Supreme Court, Nassau County, for its determination of the cross motion on the merits (see American Fed. of School Adm'rs, AFL-CIO v Council of Adm'rs & Supervisors, 266 AD2d 417, 418; Polera Bldg. Corp. v New York School Constr. Auth., 262 AD2d 295).

Lopez v Retail Prop. Trust, 2011 NY Slip Op 04008 (App. Div., 2nd 2011)

The Supreme Court, in its discretion, may grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Wigand v Modlin, 82 AD3d 1213; Owen v Lester, 79 AD3d 992; Audiovox Corp. v Benyamini, 265 AD2d 135, 140). The compliance conference order dated February 17, 2010, warning the plaintiff that failure to file a note of issue within 90 days would result in dismissal of the action, did not mandate that all discovery be complete prior to the filing of the note of issue. Even though the defendant Kone, Inc. (hereinafter the defendant), was impeding discovery, the plaintiff filed a conditional note of issue as directed by the compliance conference order. It was not until after the filing of the conditional note of issue that the defendant moved for a protective order with respect to the plaintiff's discovery requests, on the ground that they were untimely. Under these circumstances, the plaintiff's cross motion to compel the defendant to comply with outstanding discovery should have been granted (see Karakostas v Avis Rent A Car Sys., 306 AD2d 381, 382; Schmitt v Carl Meyer's Hof, Inc., 86 AD2d 985).

Olkovetsy v Friedwald Ctr. for Rehabilitation & Nursing, LLC, 2011 NY Slip Op 04015 (App. Div. 2nd 2011)

Pursuant to CPLR 4504(a), information obtained by, among others, professional nursing personnel in attending to a patient in a professional capacity and "which [is] necessary to enable him [or her] to act in that capacity" is privileged. As a general rule, disclosure of the name and address of a nonparty patient who may have been a witness to an alleged act of negligence or malpractice does not violate the patient's privilege of confidentiality of treatment (see Rabinowitz v St. John's Episcopal Hosp., 24 AD3d 530; Hirsch v Catholic Med. Ctr. of Brooklyn & Queens, 91 AD2d 1033, 1034; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530-531), provided that the requesting party "is not seeking to identify the patient by reference to the medical treatment he [or she] received" (Matter of Seymour, 288 AD2d 894, 894).

Contrary to the defendants' contention, in light of the broad range of services provided in a nursing home, the information requested by the plaintiff did not fall within the ambit of CPLR 4504(a) (see generally Rabinowitz v St. John's Episcopal Hosp., 24 AD3d 530; cf. Gunn v Sound Shore Med. Ctr. of Westchester, 5 AD3d 435, 437). Additionally, the information demanded by the plaintiff was necessary to the prosecution of the action and, as limited by the Supreme Court to the period from January 1, 2005, through February 28, 2005, and to only the residents of the decedent's particular unit of residency, the demand was not overly broad or unduly burdensome (see Grant v PALJR, LLC, 64 AD3d 750, 751).

Trueforge Global Mach. Corp. v Viraj Group., 2011 NY Slip Op 04040 (App. Div., 2nd 2011)

The Supreme Court properly denied the defendants' cross motion for summary judgment dismissing the complaint pursuant to General Obligations Law § 5-701(a)(10). "[I]n a contract action[,] a memorandum sufficient to meet the requirements of the Statute of Frauds must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter" (Morris Cohon & Co. v Russell, 23 NY2d 569, 575; see Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 378-379). "If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482, cert denied 498 US 816; see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109). Thus, "a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable" (Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d at 109; see 2004 McDonald Ave. Realty, LLC v 2004 McDonald Ave. Corp., 50 AD3d 1021; Andor Group v Benninghoff, 219 AD2d 573). Further, while General Obligations Law § 5-701(a)(10) applies to contracts implied in law to pay reasonable compensation (see Snyder v Bronfman, 13 NY3d 504), in an action to recover reasonable compensation, "a sufficient memorandum need only evidence the fact of plaintiff's employment by defendant to render the alleged services" (Morris Cohon & Co. v Russell, 23 NY2d at 575-576)."The obligation of the defendant to pay reasonable compensation for the services is then implied" (id. at 576). Contrary to the defendants' contention, they failed to establish their prima facie entitlement to judgment as a matter of law based on the statute of frauds, as certain e-mail correspondence (see General Obligations Law § 5-701[b][4]; Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 AD3d 476, 477; see also Intercontinental Planning v Daystrom, Inc., 24 NY2d at 379; Aloisi v Coin Phones, 157 AD2d 688) was sufficient to set forth an objective standard for determining the compensation to be paid to the plaintiff as a finder's fee, since it was tied to an extrinsic event, i.e., it was expressed as a percentage of the price paid by the defendants for the located acquisition opportunity, thus rendering the terms definite and enforceable (see Tonkery v Martina, 78 NY2d 893; Novello v 215 Rockaway, LLC, 70 AD3d 909; Edge Mgt. Corp. v Crossborder Exch. Corp., 304 AD2d 422; cf. MP Innovations, Inc. v Atlantic Horizon Intl., Inc., 72 AD3d 571).

Furthermore, the Supreme Court did not improvidently exercise its discretion in granting, upon reargument, the plaintiff's motion to compel a deposition of nonparty Neeraj Kochhar. "[A] corporation has the right in the first instance to determine which of its representatives will appear for an examination before trial" (Barone v Great Atl. & Pac. Tea Co., 260 AD2d 417, 417-418; see Aronson v Im, 81 AD3d 577, 577; Nunez v Chase Manhattan Bank, 71 AD3d 967; Mercado v Alexander, 227 AD2d 391). The moving party that is seeking additional depositions has the burden of demonstrating "(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case" (Zollner v City of New York, 204 AD2d 626, 627; see Thristino v County of Suffolk, 78 AD3d 927; Spohn-Konen v Town of Brookhaven, 74 AD3d 1049; Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d 930, 932-933; Nazario v City of New York, 27 AD3d 439; Barone v Great Atl. & Pac. Tea Co., 260 AD2d at 418). Here, the plaintiff satisfied this burden by demonstrating that the representative produced by the defendants for deposition did not have sufficient knowledge of the events giving rise to the complaint (see Nunez v Chase Manhattan Bank, 71 AD3d 967), and that there was a substantial likelihood that Neeraj Kochhar possessed information which was material and necessary to the issue of whether the plaintiff was entitled to payment of a finder's fee (see Nazario v City of New York, 27 AD3d 439; cf. Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d at 932-933).

Waiver

Fernandez v City of New York, 2011 NY Slip Op 04111 (App. Div., 1st 2011)

Plaintiff has waived her claim that defendants' failure to produce "legible" photographs of the underside of the desk after the accident required an adverse inference that such photographs would have provided notice. The record shows that she was aware of the photographs yet filed a note of issue certifying that discovery was complete (see Escourse v City of New York, 27 AD3d 319 [2006]). In any event, the photographs would not have been probative as to notice, since the track was not visible until after the drawer fell.

CPLR § 205(a)

CPLR § 205(a)

Egan v Neghavi, 2011 NY Slip Op 04196 (App. Div., 2nd 2011)

The plaintiff commenced this action to recover damages for medical malpractice and wrongful death on behalf of the decedent, his wife, prior to obtaining letters of administration. The defendants moved to dismiss the complaint with prejudice on the ground that he lacked legal capacity to sue. The Supreme Court dismissed the action without prejudice to the commencement of a new action pursuant to CPLR 205(a). On appeal, the plaintiff contends that, since he ultimately obtained limited letters of administration, the Supreme Court should have granted him leave to amend the caption and complaint instead of dismissing the action. However, the plaintiff did not cross-move or even request such relief in his opposing papers and submitted only expired letters of administration. Under the circumstances, the Supreme Court properly dismissed the complaint without prejudice (see Carrick v Central Gen. Hosp., 51 NY2d 242; George v Mt. Sinai Hosp., 47 NY2d 170; Mendez v Kyung Yoo, 23 AD3d 354; Krainski v Sullivan, 208 AD2d 904; Ballav v Deepdale Gen. Hosp., 196 AD2d 520).

I haven't seen 205 pop up in a while.