Category: CPLR

The Court’s inherent power to vacate shouldnt be invoked all willy nilly like

CPLR R. 5015

Galasso, Langione & Botter, LLP v Liotti, 2011 NY Slip Op 01432 (App. Div., 2nd 2011)

Although the court has an inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; Katz v Marra, 74 AD3d 888; see generally Selinger v Selinger, 250 AD2d 752, 753), the invocation of the court's inherent power to vacate its judgment or order was not warranted herein. Thus, the Supreme Court properly denied the appellant's motion to vacate the judgment, and properly denied his motion for leave to renew his motion to vacate the judgment. Moreover, the Supreme Court also providently exercised its discretion, upon granting the third-party defendant's motion for sanctions, in imposing a sanction in the sum of $1,000 on the appellant (see 22 NYCRR 130-1.1 [c]; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749).

Indeed, the conduct of the pro se appellant attorney in pursuing the instant appeal appears to be completely without merit in law or fact and unsupported by a reasonable argument for an extension, modification, or reversal of existing law, or undertaken primarily to delay or prolong the resolution of litigation or to harass or maliciously injure another (see 22 NYCRR 130-1.1[c]; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749; Weinstock v Weinstock, 253 AD2d 873, 874, cert denied 526 US 1088).

3013

CPLR § 3013 Particularity of statements generally

U.S. Underwriters Ins. Co. v Greenwald, 2011 NY Slip Op 01528 (App. Div., 1st 2011)

Contrary to Greenwald's contention, the complaint sets forth all the elements of a negligence cause of action and apprises Greenwald of the acts intended to be proved (see CPLR 3013). Moreover, the evidence that Greenwald was dining at a restaurant outside the vicinity of the apartment building and was not observed near the apartment around the time of the fire does not conclusively establish that he played no part in causing the fire. Since Greenwald's whereabouts at the material time are likely to be predominantly within his and Corsell's knowledge, it would be premature to dismiss the negligence cause of action prior to discovery (see Barrios v Boston Props. LLC, 55 AD3d 339 [2008]).

The bold is mine.

Service Complete upon Service: CPLR § 311

CPLR § 311 Personal service upon a corporation or governmental subdivision

Claudio v Show Piers on the Hudson, 2011 NY Slip Op 01585 (App. Div. 1st 2011)

The motion court properly charged Port Parties with knowledge of plaintiff's claim as of May 15, 2008. Service of process on Port Parties was "complete" when the summons and complaint were personally served upon an authorized agent of the Secretary of State on that date (Business Corporation Law § 306[b][1]; CPLR 311). Port Parties' contention that it did not actually receive the copy mailed to it by the Secretary of State is unsupported by the record and, in any event, unavailing. Business Corporation Law § 306(b)(1) does not make completion of  service contingent upon the Secretary of State's mailing (see Flick v Stewart-Warner Corp., 76 NY2d 50, 56-57 [1990]).

 

3101; 3103; Common Interest Priv.

CPLR  3101 Scope of disclosure

Ford v Rector, Church-Wardens, Vestrymen of Trinity Church in the City of New York, 2011 NY Slip Op 01064 (App. Div., 1st 2011)

While defendants' discovery request for all plaintiff's home and cellular telephone records dating from six years before the sending of the anonymous faxes that purportedly led to her termination was overly broad and unnecessarily burdensome, the denial of the request in its entirety was inappropriate, given defendants' showing of the need for the discovery. Defendants allege that plaintiff was terminated not in retaliation for commencing a discrimination suit but because of her involvement in the sending of certain anonymous faxes and her dishonesty during the investigation into the sending of the faxes. Plaintiff asserts that she does not know the person who allegedly caused the faxes to be sent. However, there is documentary evidence suggesting that he is her brother-in-law. Thus, we conclude that plaintiff's telephone records, as circumscribed above, for the year preceding the sending of the faxes are "material and necessary" to the defense of this action (CPLR 3101[a]; see Anonymous v High School for Envtl. Studies, 32 AD3d 353, 358 [2006]).

Contrary to defendants' contention, production of the remainder of the information  requested should not be compelled, despite plaintiff's untimely objection to the request (Lea v New York City Tr. Auth., 57 AD3d 269 [2008]; Haller v North Riverside Partners, 189 AD2d 615, 616 [1993]).

American Bank Note Corp. v Daniele, 2011 NY Slip Op 01063 (App. Div., 1st 2011)

Finally, there was no error in permitting defendants to testify at the hearing by means of a live video conference link from Argentina. First, the court quashed the subpoena plaintiffs had originally served on defendants and plaintiffs did not challenge this ruling on appeal. Thus, defendants' appearance via video conference was voluntary. Further, plaintiffs fully participated in that hearing.

Pursuant to CPLR 3103(a), the court may regulate "any disclosure device" in order to "prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. . . " The decision to allow a party or witness to testify via video conference link is left to a trial court's discretion (People v Wrotten, 14 NY3d 33, 37-38 [2009] cert denied __ US __, 130 S Ct 2520 [2010]).

Here, defendant Daniele had not made travel arrangements to come to the United States. There was also a question of whether he could lawfully leave Argentina because of charges plaintiffs filed against him in that country. Thus, coming to New York to testify was "not feasible as a practical matter" (Matter of Singh, 22 Misc 3d 288, 290 (Sup Ct, Bronx County [*2]2008), and would have resulted in hardship (Rogovin v Rogovin, 3 AD3d 352, 353 [2004]). Accordingly it was proper to allow defendants to testify from Argentina via video conferencing.

Mt. McKinley Ins. Co. v Corning Inc., 2011 NY Slip Op 01061 (App. Div., 1st 2011)

In this action seeking a declaratory judgment establishing entitlement to insurance coverage for defense and/or indemnification, the IAS court did not abuse its discretion in ordering the subject documents produced (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]). The motion court properly held that Corning failed to establish that the subject documents were protected by the common interest privilege. While Corning asserted that the documents were "generated in furtherance of a common legal interest" between itself and the committees in the bankruptcy action and that the documents included, communications evincing strategy and preparation for an upcoming confirmation hearing, it submitted no evidence in support of these assertions. Moreover, Corning never stated, let alone established, that it or the committees had a reasonable expectation of confidentiality with respect to these communications. Accordingly, Corning failed to establish that the relevant communications with the committees were in furtherance of a common legal interest and that with respect to these communications, Corning and the committees had a reasonable expectation of confidentiality (see United states v Schwimmer, 892 F2d 237, 243-244 [2d Cir 1989]; In re [*2]Quigley Company, Inc., 2009 Bankr LEXIS 1352, 8-9 [Bankr SD NY 2009].

Yu Hui Chen v Chen Li Zhi, 2011 NY Slip Op 01267 (App. Div., 2nd 2011)

While depositions of parties to an action are generally held in the county where the action is pending (see CPLR 3110[1]), if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d 815; LaRusso v Brookstone, Inc., 52 AD3d 576, 577). Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff's cross motion for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means. The plaintiff demonstrated that traveling from China to the United States for his deposition would cause undue hardship (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d at 815-816; Wygocki v Milford Plaza Hotel, 38 AD3d 237; Rogovin v Rogovin, 3 AD3d 352, 353; Matter of Singh, 22 Misc 3d 288; see also Hoffman v Kraus, 260 AD2d 435, 437; cf. Matter of Albarino, 27 AD3d 556).

In light of our determination that the plaintiff's deposition may be conducted by remote electronic means, the Supreme Court improvidently exercised its discretion in staying all proceedings in the action until the plaintiff could return to the United States for his deposition.

 

3215(c)(f): Defaults

CPLR § 3215 Default judgment

Brown v Andreoli, 2011 NY Slip Op 01060 (App. Div., 1st 2011)

Order, Supreme Court, New York County (George J. Silver, J.), entered June 9, 2010, which, in an action for personal injuries arising out of a motor vehicle accident, granted plaintiff's motion for a default judgment to the extent that if defendant did not file her answer within 45 days of service of the order with notice of entry, a default judgment would be entered against her, unanimously reversed, on the law, without costs, the motion denied, and the complaint dismissed as abandoned. The Clerk is directed to enter judgment accordingly.

Plaintiff failed to demonstrate a reasonable excuse for failing to move for a default judgment until more than one year after defendant's time to answer had expired (see CPLR 3215[c]; Mejia-Ortiz v Inoa, 71 AD3d 517 [2010]). Counsel's proffered explanation for the delay in moving for a default judgment, namely health problems, did not constitute a reasonable excuse since those health problems occurred outside the one-year period in which plaintiff had to move (see Mattera v Capric, 54 AD3d 827 [2008]).

The motion court, after determining that no reasonable excuse had been established, should have dismissed the complaint as abandoned (see CPLR 3215[c]; Perricone v City of New York, 62 NY2d 661, 663 [1984]; Opia v Chukwu, 278 AD2d 394 [2000]).

Midfirst Bank v Al-Rahman, 2011 NY Slip Op 01252 (App. Div., 2nd 2011)

The Supreme Court also properly denied that branch of the appellants' motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale, as they "failed to establish that the plaintiff procured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct" (Tribeca Lending Corp. v Crawford, 79 AD3d at 1020; see Feldstein v Rounick, 295 AD2d 398).

Further, the plaintiff's alleged failure to comply with CPLR 3215(f) did not render the judgment a nullity, or warrant excusing the appellants' default in the absence of a reasonable excuse or a potentially meritorious defense (see Neuman v Zurich N. Am., 36 AD3d 601, 602; Araujo v Aviles, 33 AD3d 830; Coulter v Town of Highlands, 26 AD3d 456, 457).

CPLR R. 3118

CPLR R. 3118 Demand for address of aprty or of person who possessed an assigned cause of action or defense

Matter of Wright-Roberts v Roberts, 2011 NY Slip Op 01136 (App. Div., 1st 2011)

Pursuant to CPLR 3118, respondent, as a party in this action, is required to provide petitioner with a verified statement setting forth his post office address and residence. Moreover, respondent's counsel, who is currently representing respondent in the pending litigation, can also be compelled to disclose his client's address, if it is known by him, without implicating the attorney-client privilege, since "disclosure is necessary for the proper administration of justice" (see Matter of Jacqueline F., 47 NY2d 215, 221 [1979]). It may be unlikely that respondent will comply with an order directing him to disclose his address, given his history of willfully failing [*2]to comply with court orders. However, that does not justify denying petitioner the relief to which she is entitled in the first instance. Respondent should not be

3212; Successive SJ; and stuff

CPLR R. 3212

CPLR R. 3211

11 Essex St. Corp. v Tower Ins. Co. of N.Y., 2011 NY Slip Op 01127 (App. Div., 1st 2011)

The court correctly denied DeSimone's motion for summary judgment on the grounds that it had denied a prior summary judgment motion by DeSimone and no new factual assertions and evidence were submitted or other sufficient cause shown for DeSimone's making the second motion (see Jones v 636 Holding Corp., 73 AD3d 409 [2010]; Forte v Weiner, 214 AD2d 397 [1995], lv dismissed 86 NY2d 885 [1995]).

Lau v 7th Precinct of the Police Dept. of the County of N.Y., 2011 NY Slip Op 01342 (App. Div., 1st 2011)

Although defendants stated in their notice of motion that they sought an order pursuant to CPLR 3212 granting summary judgment, in the supporting affirmation, they argued that the complaint failed to state a cause of action (CPLR 3211[a][7]), and the exhibits annexed to the affirmation consist solely of pleadings. Upon analyzing the pleadings, the motion court granted defendants' motion "for summary judgment . . . dismissing plaintiff's complaint for failure to state a cause of action."

Summary judgment was properly granted although the complaint could have been dismissed pursuant to CPLR 3211(a)(7). Also, plaintiff's argument that the court should have denied defendants summary judgment because the evidence raises issues of fact whether he had a special relationship with the police is unavailing. His General Municipal Law § 50-h hearing testimony is insufficient to establish the elements of such a relationship (see Luisa R. v City of New York, 253 AD2d 196, 203 [1999]; Artalyan, Inc. v Kitridge Realty Co., Inc., 52 AD3d 405, 407 [2008]). Among other things, the police advised plaintiff that they could not help him in this matter and that he would be arrested if he continued to call them. In the face of this evidence, plaintiff cannot establish reasonable reliance upon any purported promise of police protection.

Plaintiff's proposed amended complaint failed to remedy the factual deficiencies in his original complaint (Pacheco v Fifteen Twenty Seven Assoc., 275 AD2d 282, 284 [2000]; Schulte [*2]Roth & Zabel, LLP v Kassover, 28 AD3d 404 [2006]).

Court can’t screw with stip

CPLR R. 2104

Genger v Genger, 2011 NY Slip Op 01357 (App. Div., 1st 2011)

While recognizing that, pursuant to the stipulation, plaintiff is entitled to further audits as to the completeness and accuracy of the marital assets and liabilities contained on the marital balance sheet as of January 31, 2002 and valued as of October 26, 2004, the court impermissibly restricted the scope of these audits, essentially rewriting the stipulation by imposing additional terms (see Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173, 182 [1995]). The stipulation is patently unambiguous and clearly evinces the parties' intent (see Chimart Assoc. v Paul, 66 NY2d 570, 574 [1986]). It contains no restriction or limitation on the scope of the audits. The court was not at liberty to alter or change any of the provisions of the stipulation without the consent of both parties (see Leffler v Leffler, 50 AD2d 93, 95 [1975], affd 40 NY2d 1036 [1976]).

Defendant is bound by the contents of the stipulation (see Da Silva v Musso, 53 NY2d 543, 550 [1981]). His assertions are insufficient to rebut "the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties" (Merrick v Merrick, 181 AD2d 503 [1992] [internal quotation marks and citation omitted]).

R. 2221

CPLR R. 2221

Vazquez v JRG Realty Corp., 2011 NY Slip Op 01349 (App. Div., 1st 2011)

No appeal lies from the denial of a motion to reargue (DiPasquale v Gutfleish, 74 AD3d 471 [2010]). Supreme Court also properly denied the motion to renew, as the expert affidavit proffered on renewal was available to plaintiffs prior to the summary judgment motion being fully submitted (see e.g. Estate of Brown v Pullman Group, 60 AD3d 481 [2009], lv dismissed and denied 13 NY3d 789 [2009]). In any event, plaintiffs' expert affidavit was speculative, conclusory, and not based on foundational facts, i.e., an exact measurement of the purported defect, and thus was insufficient to create an issue of fact (Pappas v Cherry Cr., Inc., 66 AD3d 658 [2009]).

 

CPLR § 3012; Judiciary Law § 470

 CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

Judiciary Law § 470

Empire Healthchoice Assur., Inc. v Lester, 2011 NY Slip Op 01412 (App. Div., 1st 2011)

Judiciary Law § 470 requires an attorney admitted to practice in New York who is not a New York resident to maintain an office in this state for the practice of law (see Kinder Morgan Energy Partners, LP v Ace Am. Ins. Co., 51 AD3d 580 [2008]; Lichtenstein v Emerson, 251 AD2d 64 [1998]). Failure of counsel to maintain a local office requires striking of a pleading served by such attorney, without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d 339 [2002]). Thus the court was correct in striking defendants' answer.

The court also properly granted defendants' cross motion pursuant to CPLR 3012(d) for an extension of time to answer (Nason v Fisher, 309 AD2d 526 [2003]). Plaintiff's contention that Judiciary Law § 470 barred the motion court from extending defendant's time to answer is incorrect, since the striking of a pleading under that statute is without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d at 339). Defendants' delay in serving a proper answer was short and the defect in the original answer was attributable to law office failure by defendants' original attorney. Plaintiff was not prejudiced by any delay because the original defective answer was timely served (see Gazes v Bennett, 70 AD3d 579 [2010]). Defendants were not required to demonstrate a meritorious defense in order to be granted relief under CPLR 3012(d) (see Nason, 309 AD2d at 526; DeMarco v Wyndham Intl., 299 AD2d 209 [2002]; Mufalli v Ford Motor Co., 105 AD2d 642 [1984]).