Category: CPLR

CPLR R. 3025(c): Amend the pleadings to conform to the facts

CPLR R. 3025(c)

Rodriguez v Panjo, 2011 NY Slip Op 01259 (App. Div., 2nd 2011)

In August 2009 the plaintiff moved pursuant to CPLR 3025(c) for leave to amend the complaint to conform to the evidence, and the defendants moved for summary judgment dismissing the complaint. In the order appealed from, the Supreme Court denied the plaintiff's motion and granted the defendants' motion. We reverse.

"Leave to conform a pleading to the proof pursuant to CPLR 3025(c) should be freely granted absent prejudice or surprise resulting from the delay" (Alomia v New York City Tr. Auth., 292 AD2d 403, 406; see Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d 822). Mere lateness is not a barrier to amendment, but it will preclude amendment if it is coupled with significant prejudice to the other side (Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d at 822). Here, the Supreme Court improvidently exercised its discretion by denying the plaintiff's motion for leave to amend the complaint to conform to the evidence as Panjo, having himself been involved in the accident and having spoken to Estaban at the scene, was fully aware of the facts and that the accident involved three vehicles, not two vehicles as originally alleged in the complaint. Furthermore, the details of how the accident occurred, the number of vehicles involved, the make and year of the vehicle which hit the plaintiff's vehicle, and who operated the vehicles, were fully explored at Panjo's deposition. Accordingly, the defendants would not have suffered surprise or prejudice by an amendment of the complaint to conform to the evidence (see Rizzo v Kay, 79 AD3d 1001; Alomia v New York City Tr. Auth., 292 AD2d at 406).

CPLR R. 4518(a)

CPLR R. 4518 Business records

CPLR § 2002 Error in ruling of court

Rodriguez v New York City Tr. Auth., 2011 NY Slip Op 01258 (App. Div., 2nd 2011)

The defendant's contention that the Supreme Court improperly denied the admission of a certain photograph of the upper landing of the subject stairway taken some five years after the accident is without merit. The defendant failed to establish a proper foundation by showing that it was a fair and accurate representation of the condition of the landing on the date of the accident (see Moore v Leaseway Transp. Corp., 49 NY2d 720, 723; People v Byrnes, 33 NY2d 343, 347-349; Saporito v City of New York, 14 NY2d 474, 476-477; Leven v Tallis Dept. Store, 178 AD2d 466; Prince, Richardson on Evidence § 4-212, at 149 [Farrell 11th ed]).

We agree with the defendant that the Supreme Court erred in precluding it from introducing into evidence two accident reports. The accident reports were made in the regular course of business and were admissible under CPLR 4518(a) (see Galanek v New York City Tr. Auth., 53 AD2d 586; Bracco v MABSTOA, 117 AD2d 273, 277; Klein v Benrubi, 60 AD2d 548, 548; Bishin v New York Cent. R.R. Co., 20 AD2d 921). A business record is admissible even though the person who prepared it is available to testify to the acts or transactions recorded (see Meiselman v Crown Hgts. Hosp., 285 NY 389, 397; Clarke v New York City Tr. Auth., 174 AD2d 268; Napolitano v Branks, 141 AD2d 705, 706). Accordingly, the accident reports should have been admitted (see Klein v Benrubi, 60 AD2d at 548). However, the error does not require reversal since the precluded evidence was cumulative of testimony already adduced before the jury during the defendant's case (see CPLR 2002; Woody v Foot Locker Retail, Inc., 79 AD3d 740; Sweeney v Peterson, 24 AD3d 984; Tannen v Long Is. R.R., 215 AD2d 745).

Standing and Res Judicata

Springwell Nav. Corp. v Sanluis Corporacion, S.A., 2011 NY Slip Op 01353 (App. Div., 1st 2011)

Since this Court's dismissal of the prior action for lack of standing (46 AD3d 377 [2007]) was not a final determination on the merits for res judicata purposes, plaintiff is not precluded from reasserting the same claims based on newly conferred rights that cured the lack of standing (see e.g. Pullman Group v Prudential Ins. Co. of Am., 297 AD2d 578 [2002], lv dismissed 99 NY2d 610 [2003]). Nor, for collateral estoppel purposes, is the issue raised in this action identical to the issue "necessarily decided" in the prior appeal (see Matter of Hofmann, 287 AD2d 119, 123 [2001]). The issue decided against plaintiff in the prior appeal was whether plaintiff had standing as a beneficial owner to sue on either the indenture or the note. The issue now before us is whether plaintiff has standing, as the registered holder's authorized appointee, to bring suit on the indenture.

As the indenture expressly permits the registered holder to assign its right to institute any legal action to an appointed proxy, and plaintiff has obtained the registered holder's authorization to sue in its stead, plaintiff's status has changed, and its prior lack of capacity has been cured (see [*2]e.g. Allan Applestein Trustee F/B/O D.C.A. Grantor Trust v Province of Buenos Aires, 415 F3d 242 [2d Cir 2005]).

 

CPLR § 5511 and CPLR § 5701

CPLR § 5511 Permissible appellant and respondent

Santos v County of Westchester, 2011 NY Slip Op 01013 (App. Div., 2nd 2011)

The appeal by the County defendants must be dismissed. Since they did not oppose the City's cross motion before the Supreme Court, they are not aggrieved by the order appealed from (see CPLR 5511).

CPLR § 5701 Appeals to appellate division from supreme and county courts

Wright v Stam, 2011 NY Slip Op 01020 (App. Div., 2nd 2011)

ORDERED that the appeal from so much of the order as granted that branch of the motion which was to appoint a guardian ad litem on the plaintiff's behalf only to the extent of directing a hearing on that issue is dismissed, as no appeal lies as of right from an order directing a hearing to aid in the determination of a motion, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Zoref v Glassman, 44 AD3d 1036); and it is further,

ORDERED that the appeal from so much of the order as, sua sponte, directed the plaintiff to undergo a psychological evaluation is dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Ciprijan v Stone, 65 AD3d 659); and it is further,

The bold is mine.

Inadmissible hearsay not enough to defeat SJ when that’s all there is

Roche v Bryant, 2011 NY Slip Op 01011 (App. Div., 2nd 2011)

The plaintiff failed to raise a triable issue of fact in opposition. The only evidence offered by the plaintiff to demonstrate that, prior to this incident, the dog actually exhibited any fierce or hostile tendencies was inadmissible hearsay (see Stock v Otis El. Co., 52 AD3d 816, 817 [inadmissible hearsay "is insufficient to bar summary judgment if it is the only evidence submitted" (internal quotation marks omitted)]; Rodriguez v Sixth President, Inc., 4 AD3d 406; Palumbo v [*2]Nikirk, 59 AD3d at 691; Sers v Manasia, 280 AD2d at 540; Lugo v Angle of Green, 268 AD2d 567).

The bold is mine.

CPLR § 5019 and substantive rights

CPLR § 5019 Validity and correction of judgment or order; amendment of docket.

Mount Sinai Hosp. v Country Wide Ins. Co., 2011 NY Slip Op 01008 (App. Div., 2nd 2011)

The hospital then entered judgment against the insurer in satisfaction of that claim in the total sum of $25,327.50. The judgment consisted of benefits due the hospital for services rendered in the sum of $14,105.50, interest in the sum of $9,772, an attorney's fee in the sum of $850, and costs and disbursements in the sum of $600.

Thereafter, the insurer moved pursuant to CPLR 5019(a) to modify the amount of the judgment, belatedly asserting that the judgment exceeded the coverage limit of the subject policy due to payments previously made under the policy to other health care providers. The Supreme Court granted the insurer's motion, and ordered a hearing to determine the amount remaining on the policy. The plaintiffs appeal.

CPLR 5019(a) provides a court with the discretion to correct a technical defect or a ministerial error, and may not be employed as a vehicle to alter the substantive rights of a party (see Kiker v Nassau County, 85 NY2d 879, 880-881; Herpe v Herpe, 225 NY 323, 327; Rotunno v Gruhill Constr. Corp., 29 AD3d 772, 773; Haggerty v Market Basket Enters., Inc., 8 AD3d 618, 618-619; Novak v Novak, 299 AD2d 924, 925; Tait v Lattingtown Harbor Dev. Co., 12 AD2d 966, 967; see also Minnesota Laundry Serv., Inc. v Mellon, 263 App Div 889, 890, affd 289 NY 749; Fleming v Sarva, 15 Misc 3d 892, 895; Matter of Schlossberg v Schlossberg, 62 Misc 2d 699, 701). Here, in seeking to modify the amount of the judgment on the ground that the policy limits were nearly exhausted, the insurer was not seeking to correct a mere clerical error. Rather, it sought to change the judgment with respect to a substantive matter. As such, CPLR 5019(a) was not the proper procedural mechanism by which to seek such modification. Although the hospital raises this issue for the first time on appeal, we may review the issue because it presents a question of law which could not have been avoided if brought to the Supreme Court's attention at the proper juncture (see Gutierrez v State of New York, 58 AD3d 805, 807; Dugan v Crown Broadway, LLC, 33 AD3d 656, 656; Buywise Holding, LLC v Harris, 31 AD3d 681, 682).

The bold is mine.

 

Wu-Tang and CPLR 3025

CPLR R. 3025 Amended and supplemental pleadings

Coles v Wu-Tang Prods., Inc., 2011 NY Slip Op 00789 (App. Div., 1st 2011)

The record supports the trial court's determination that plaintiff, as a lyricist of the compositions, and defendant Diggs, as a producer of the music, regarded themselves as joint authors sharing equally in the ownership of a joint work (see Childress v Taylor, 945 F2d 500, 508 [2d Cir 1991]). The court properly granted plaintiff leave to conform the complaint to the evidence presented at trial by adding a claim against Diggs for his unauthorized receipt of a 50% producer's fee (see CPLR 3025[c]; Gonfiantini v Zino, 184 AD2d 368, 369-370 [1992]).

The bold is mine

I was looking around for this and realized that I never posted it.

Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 (App. Div., 2nd 2010)

A defendant seeking to vacate a judgment entered upon its default in appearing and answering the complaint must demonstrate a reasonable excuse for its delay in appearing and answering, as well as the existence of a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673 [2008]). The Special Deputy Superintendent of the State of New York Insurance Department acknowledged service upon him of the summons and complaint in this matter and notified the defendant, through Debra Sutton at its Pennsylvania office, of service as effected above (see Insurance Law § 1212; Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958, 959 [2008]). In response, the defendant failed to meet its burden of showing a reasonable excuse for its failure to timely appear or answer the complaint and the existence of a meritorious defense. The affidavit of a senior claims examiner employed in the defendant's Texas office averred that there was no record of the summons and complaint in the defendant's computer system, but failed to demonstrate any knowledge of the office procedures employed in the handling of a summons and complaint received at the defendant's Pennsylvania office. Thus, that affidavit was insufficient to show that the failure to timely appear and answer was due to a clerical error which caused the summons and complaint to be overlooked (see Montefiore Med. Ctr. v Auto One Ins. Co., [*2]57 AD3d at 959; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; cf. Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544 [2008]).

Furthermore, the defendant failed to set forth facts from an individual with personal knowledge sufficient to demonstrate the existence of a meritorious defense. The affidavit of the plaintiff's biller showed that the forms N-F5 and UB-92 relating to this matter were mailed on April 23, 2008, and signed for by the defendant on April 28, 2008. At that time, according to the defendant's own records, there were still sufficient funds remaining under the policy to pay this bill (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). In response, the defendant offered only the same aforementioned affidavit, which also averred that there was no record of the bill in question in the defendant's computer system. This was insufficient for a similar reason; that is, the affiant failed to show any knowledge of the office procedures employed in the handling of billing forms received at the defendant's Pennsylvania office (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 968; see generally New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391, 392 [2005]; Peacock v Kalikow, 239 AD2d 188, 190 [1997]; cf. St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Accordingly, the defendant's motion to vacate the judgment entered upon its failure to appear or answer should have been denied.

The Supreme Court, in effect, denied, as academic, the plaintiff's motion to hold the defendant in contempt. In light of our determination, we remit the matter to the Supreme Court, Nassau County, for a determination on the merits of the plaintiff's motion.

The bold is mine.

CPLR R. 2106: can’t be a party

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

Morrison Cohen LLP v Fink, 2011 NY Slip Op 00779 (App. Div., 1st 2011)

To successfully oppose a motion for leave to enter a default judgment, a defendant must demonstrate a reasonable excuse for the default and a meritorious defense. As a party to the action, although an attorney by profession, defendant was required to submit an affidavit in opposition to plaintiff's motion for a default judgment. His submission of an affirmation instead of an affidavit was improper, "and its contents [were correctly] disregarded by the Supreme Court, thereby rendering the opposing papers insufficient to defeat the plaintiff's motion" (Pisacreta v Minniti, 265 AD2d 540 [1999]). Defendant's papers were deficient for the additional reason that the affidavit of the postal service worker on which he relied to demonstrate the inadequacy of "nail and mail" service pursuant to CPLR 308(4) was notarized by defendant himself, a party to the action.

Defendant is not entitled to relief, in the alternative, under CPLR 317 since he has failed to demonstrate that he "did not personally receive notice of the summons in time to defend" (id.; see Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 517 [2005]).

The bold is mine.

Exclusion of witnesses and CPLR 4518(a)

I probably would have stumbled across it eventually, but I found it by way of JT.

CPLR R. 4518 Business records

Yellow Book of N.Y., L.P. v Cataldo, 2011 NY Slip Op 00678 (App. Div., 2nd 2010)

Cataldo's contention that the Supreme Court erred in denying his request to exclude a witness from the courtroom is without merit. The record supports the Supreme Court's determination that the witness at issue was employed by the plaintiff's successor-in-interest and was, therefore, a party representative. As such, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial (see Auger v State of New York, 263 AD2d 929, 932; Liquori v Barrow, 160 AD2d 843, 844; Carlisle v County of Nassau, 64 AD2d 15, 18). Further, Cataldo failed to establish that he suffered any prejudice due to the continued presence of the witness (see People v Scheck, 24 AD3d 574).

Additionally, Cataldo contends that the plaintiff's documents should not have been admitted into evidence pursuant to the business records exception to the hearsay rule because the plaintiff's witness was employed by the plaintiff's successor-in-interest and because she lacked personal knowledge of the information contained in the documents. As the witness at issue was fully familiar with the plaintiff's record-keeping procedures and practices, this contention is without merit (see CPLR 4518[a]; General Bank v Mark II Imports, 290 AD2d 240, 241). Cataldo's remaining contentions regarding the court's evidentiary rulings are unpreserved for appellate review.

The bold is mine.