Category: CPLR

A Class Denied

CPLR § 901 Prerequisites to a class action

Corsello v Verizon N.Y., Inc., 2010 NY Slip Op 06563 (App. Div., 2nd 2010)

Contrary to the plaintiffs' contentions, the Supreme Court properly denied their motion, inter alia, for class action certification. The Supreme Court properly found that the proposed class definition was overbroad (see Klein v Robert's Am. Gourmet Food, Inc., 28 AD3d 63, 71). Furthermore, the plaintiffs failed to establish that questions of law or fact common to the class predominate over any questions affecting only individual members (see CPLR 901[a][2]; Morrissey v Nextel Partners, Inc., 72 AD3d 209; Solomon v Bell Atl. Corp., 9 AD3d 49, 53; Hazelhurst v Brita Prods. Co., 295 AD2d 240, 241-242; Small v Lorillard Tobacco Co., 252 AD2d 1, 9, affd 94 NY2d 43; Mitchell v Barrios-Paoli, 253 AD2d 281, 291), and that their claims or defenses were typical of those of the class (see CPLR 901[a][3]; Dimich v Med-Pro, Inc., 34 AD3d 329, 330; Ross v Amrep Corp., 57 AD2d 99, 102-103).

Brill and CPLR R. 3211(a)(7)

CPLR R. 3211(a)(7), as most of you know, permits a motion to dismiss because the complaint fails to state a cause of action.  Unlike CPLR R. 3212, there is no 120-day timeline.  The standard of review is different as well.[1]  You can make the motion at any time.[2] But it needs to be converted.  See, Rich v. Lefkovits, 56 N.Y.2d 276 (Ct. App. 1982).

But can you get around CPLR R. 3212's 120-day timeline[3] by calling your summary judgment motion as motion to dismiss.  The short answer is no;[4] however, an explanation is required.

CPLR R. 3211(a)(7) should be used to weed out those complaints that don’t state a cause of action.  That’s it.  A complaint either states a cause of action or doesn’t.  Affidavits aren’t appropriate.  But, if an affidavit is attached, the motion turns into a different animal—it shouldn’t, but it generally does.  No longer will the court limit its inquiry into whether the complaint states a cause of action; now the inquiry is, does the plaintiff have a cause of action.  Whether a plaintiff states a cause of action or has a cause of action is a different question than whether the plaintiff will ultimately be successful, which is “not part of the calculus in determining a motion to dismiss.”[5]

Whether a plaintiff will ultimately be successful is fodder for a motion for summary judgment.  It follows then, that any motion made under 3211(a)(7) that isn’t directed at the pleadings is a summary judgment motion is disguise.[6]  That disguised motion is subject CPLR 3212’s 120-day timeline.  But to get back to my earlier point, any motion to dismiss under (a)(7) that utilizes and affidavit, is not proper.  I don’t care what anyone says.  If the motion doesn’t fit within 3211, then it’s a 3212 motion, subject to the time limit.

Now the question is why should it be subject to the time limit.  The answer is Brill v City of New York, 2 NY3d 648 (Ct. App. 2004).[7]  The Court of Appeals could have modified or completely done away with Brill in Crawford v Liz Claiborne, Inc., 11 NY3d 810 (Ct. App. 2008), but it didn’t.  It remains good law.

There is no reason to permit disguised summary judgment motions, no matter how meritorious, under CPLR R. 3211(a)(7).  Otherwise, Brill is meaningless.  Motions made under (a)(7) that are converted to Summary Judgment motions or those 3211(a)(7) motions were both parties charted a summary judgment course shouldn’t be permitted either.

If anyone is interested, JT’s post prompted me to write this post.

 

[1] “In assessing a motion to dismiss made pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and are accorded every favorable inference.” Garner v China Natural Gas, Inc., 2010 NY Slip Op 02095 (App. Div., 2nd, 2010)

[2] For some interesting reading check out Butler v Catinella, 58 AD3d 145(App. Div., 2nd 2008), where the Appellate Division, Second Department corrected itself, and allowed the defense to be interposed in an answer.

[3] This is a hard timeline, with very little wiggle room.  Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)

[4] Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010); West Broadway Funding Assoc. v Friedman, 2010 NY Slip Op 04781 (App. Div., 2nd, 2010)

[5] Crepin v Fogarty, 2009 NY Slip Op 01272 (App. Div., 2nd, Feb. 19, 2009).  See also; Etzion v Etzion, 2009 NY Slip Op 03688 (App. Div., 2nd, 2009)

[6] In most, but not all cases.  It is possible that the 3211(a)(7) isn’t a disguised summary judgment motion; that it is just a garbage motion.

[7]

We conclude that "good cause" in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute—only the movant can show good cause—as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be "good cause."

CPLR R. 2106 Affirming a document is not enough

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

State Farm Mut. Auto. Ins. Co. v Hereford Ins. Co., 2010 NY Slip Op 51543(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

By notice of petition and petition dated May 14, 2008, State Farm Mutual Automobile Insurance Company (State Farm) commenced this proceeding to confirm a handwritten arbitration award dated June 19, 2007. Hereford Insurance Company (Hereford) opposed such relief, arguing, inter alia, that State Farm was, in effect, seeking either to vacate a final typewritten arbitration award dated July 7, 2007, thereby reinstating the handwritten award dated June 19, 2007, or to modify the July 7, 2007 award by conforming it to the June 19, 2007 award, and, as such, the proceeding was untimely as exceeding the 90-day time period within which an award may be vacated or modified (see CPLR 7511 [a]). The Civil Court denied the petition and dismissed the proceeding without prejudice to the commencement of a new proceeding, finding that the handwritten award was not in proper form because of a problem with the arbitrator's affirmation (see CPLR 7509). On appeal, State Farm contends that the petition to confirm the handwritten award should have been granted, and Hereford contends, inter alia, that the proceeding should have been dismissed with prejudice as it was not timely commenced.

CPLR 7510 permits a party to confirm an award; however, an award by definition must be in writing, signed and affirmed (CPLR 7507). For a document to be properly affirmed, there must be compliance with either CPLR 2309 or CPLR 2106. Here, the document submitted with the petition does not comply with the requisites of either statute. The handwritten award signed by the arbitrator, dated June 19, 2007, simply states: "This decision is according to my understanding of the current local law and the facts presented. I may not render a decision on a case where I or my company is directly or indirectly interested, or where there is even an appearance of bias. I affirm that I have read [*2]and understand the following."

This is not in an authorized form; the mere statement that a person affirms a document is insufficient (Slavenburg Corp. v Opus Apparel, Inc., 53 NY2d 799 [1981]). State Farm's assertion that arbitrators have been using this vague language for years is irrelevant. Consequently, the Civil Court acted within its discretion in allowing petitioner a further opportunity to submit an award in proper form for confirmation. Accordingly, the order is affirmed.

The bold is mine.

The NYLJ has something special for you.

My week started off with the littlest child breaking my glasses into two.  As you can see, I fixed it with a mix of crazy glue and sewing thread.  Now when I wear them I look like Sloth and it makes my vision all crazy like.  And today, while I was walking home I walked past an electronics store with a Pickachu statute on the outside and I swear, it looked like it was flipping me the bird.  I blame that on my lack of sleep.  What I can't explain is that for second, I was genuinely pissed at Pickachu.1
Photo

And onto the law.  Yesterday's Law Journal had one of those special fancy pants pull out sections: Court of Appeals and Appellate Practice.  One of the sections, indeed, the most important section is, Civil Practice: Substantive Impact of the CPLR.  Sure, there are other sections, but you didn't come here for them.  You can here to see if I would actually fight a statue of a cartoon character and read about the CPLR.

The section covers, among other things CPLR CPLR § 205(a), CPLR § 5511, CPLR § 5304, CPLR § 901(a).

The discussion of CPLR 205(a) revolved around Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511 (Ct. App., 2009), a case I posted way back when.  Next is CPLR 5511.  The author, Thomas F. Gleason, starts with Batavia Turf Farms v. County of Genesee, 91 NY 2d 906 (Ct. App. 1998), a remarkably terse decision.  From there he moves to Adams v Genie Indus., Inc., 14 NY3d 535 (Ct. App. 2010), a case I didn't post.  Adams, Mr. Gleason writes, rejected the "more restrictive premise of Batavia, viz., "a stipulation on one issue (such as damages) would foreclose an appeal on other unrelated issues, because a party who had consented to an order could not claim to be aggrieved by any part of it within the meaning of CPLR 5511."2

 In his discussion of class actions, namely CPLR 901(a), he refers to City of New York v Maul, 14 NY3d 499 (Ct. App. 2010), another case I managed to miss.

There's more. But you have to go read it for yourself.

Norman A. Olch, blogger and appellate guru, provides a several book reviews, including Making Your Case, by Scalia and Garner.  Everyone should read it.  You shouldnt need him to tell you to, but, if it that's what it takes, then fine.

Harry Steinberg has a must read section on how not to completely screw up your appeal.  Part of it involves preserving the issues for appeal.  A decision came out today on just that issue: Arrieta v Shams Waterproofing, Inc., 2010 NY Slip Op 06508 (App. Div., 1st 2010). 

I might add some more later.

 

——————

1.  I'm recycling facebook updates today.

2.  For more cases discussing what it means to be "aggrieved" click HERE.  I think all of them are from the Appellate Division, Second Department.  Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010) is the most recent and probably the most useful.

Rare no-fault suicide decision

It really isn't a suicide decision.  I just needed a title so I could test out the post by email thing.  As it turns out, it works terribly.

Westchester Med. Ctr. v Government Empls. Ins. Co., 2010 NY Slip Op 32295(U) (Sup Ct, Nassau County 2010)

Today there was a No-Fault Appellate Term decision which is only interesting because of the dissent.

Ortho-Med Surgical Supply, Inc. v MVAIC, 2010 NY Slip Op 51526(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

We'll skip straight to the dissent.

Defendant presented an affidavit from a claims representative attesting to a procedure wherein a denial is placed in an addressed envelope and then dropped in the claims department's "outgoing mail basket." According to the claims representative, the contents of the mail basket are collected daily by a mailroom employee, who then affixes postage to the envelopes and "puts it in the mailbox" for delivery by the U.S. postal service. In my opinion, such an affidavit is insufficient to demonstrate mailing, for it merely concludes that the mail is sent. Defendant's affiant did not demonstrate firsthand knowledge of the procedures of the mailroom to establish that the denial had been mailed to plaintiff (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227 [1995]). Consequently, defendant's motion for summary judgment dismissing the complaint should have been denied.

Finally, Barshay over at NFP posted an interesting decision on an OSC to consolidate and stay, among other things. [Update 9/5]  The decision made its way to the slip op site: Urban Radiology, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51554(U) (Civ Ct City NY, Kings County).  And on 9/3 there was an article in the NYLJ about doing away with the 30 day rule.  It's wrongheaded, but I'll leave the discussion of that to those that cover it.

CPLR § 4106; § 4113(a); and a missing witness

CPLR § 4106 Alternate jurors
CPLR § 4113 Disagreement by jury
(a) Unanimous verdict not required.  A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.

Cornell Univ. v Gordon, 2010 NY Slip Op 06394 (App. Div., 1st, 2010)

Inasmuch as defendant fully consented to -— indeed even proposed -— having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the 6 to 2 jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113(a) that a verdict must be rendered by not less than five- sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241, 241 [*2][2007]). We note, however, with respect to the merits, that while CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.

We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she
cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

You can find a more detailed analysis here.

No-Fault with a tiny tiiiiiny tap of CPLR

caddyshack

CPLR R. 2214 Motion papers; service; time

CPLR R. 4518 Business records

22 NYCRR § 208.17 Notice of trial where all parties appear by attorney.

22 NYCRR § 208.4  Papers filed in court; index number; form; label.

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

CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs

A relative ton of no- fault decisions came out today from the Appellate Term, Second Department.  Again, I'm not posting them because you care, but because It's easy for me to find cases when I post them.  For serious discussion, head over to JT and NFP.

There are, however, some interesting procedural nuances in the decisions,  making them almost relevant here.

PEERS

Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

We note, at the outset, that plaintiff's "Supplemental Affirmation in Opposition" is, in reality, a sur-reply, for the submission of which no showing of "good cause" had been made and which should not have been considered by the Civil Court and has not been reviewed on this appeal (see CPLR 2214 [c]; McMullin v Walker, 68 AD3d 943, 944 [2009]; Graffeo v Paciello, [*2]46 AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Severino v Classic Collision, 280 AD2d 463 [2001]).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Muscatello v City of New York, 215 AD2d  463 [1995]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate" (Greco v Posillico, 290 AD2d 532, 532 [2002] [citation omitted]). The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (Venetal v City of New York, 21 AD3d 1087 [2005]; Greco, 290 AD2d 532). The existence of triable issues of fact precludes a finding of a prima facie entitlement to judgment as a matter of law (Wilson-Toby v Bushkin, 72 AD3d 810 [2010]; see Brown v Outback Steakhouse, 39 AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337 [1997]; Muscatello, 215 AD2d at 464).

Although defendant's papers established, prima facie, based on objective medical evidence, that the assignor's injuries did not arise from the accident, we find that the affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.

Read JT's comments.

Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51467(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

In support of its motion for summary judgment, defendant annexed to its papers an affirmed peer review report, which found the MRIs in question to be medically unnecessary. However, also annexed to the moving papers were defendant's independent medical examination report, which found one of the MRIs to be medically necessary, and other reports that contradicted facts set forth in the peer review report. Since defendant's moving papers are contradictory as to whether there was a lack of medical necessity for the services at issue, defendant failed to establish its prima facie entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant's motion was properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

There is a Golia dissent.

Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co., 2010 NY Slip Op 51452(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

CPLR R. 3212(f)

VERIFICATION

Eagle Surgical Supply, Inc. v Travelers Indem. Co., 2010 NY Slip Op 51456(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Although defendant demonstrated that it had timely requested verification of the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to establish that plaintiff did not provide the requested verification. Defendant's litigation examiner did not even allege that the requested verification was outstanding, and defendant's attorney failed to demonstrate that she had personal knowledge to support her assertion of defendant's non-receipt of such documents (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Feratovic v Lun Wah, Inc., 284 AD2d 368, 368 [2001]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

There is a Golia "atta boy" at the end.

Total Family Chiropractic v Mercury Cas. Co., 2010 NY Slip Op 51470(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).

In an attempt to establish that the time period in which it had to pay or deny the claims was tolled due to outstanding verification requests, defendant relied upon spreadsheets annexed to the affidavit of its claim representative. However, because the claim representative did not establish that the spreadsheets constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]), defendant has not shown that it made timely verification requests.

While defendant has failed to demonstrate that it is not precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), in any event, defendant is not precluded from raising the defense of fraudulent procurement of the insurance policy (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). The certified transcripts of plaintiff's assignors' examinations under oath, annexed to defendant's motion papers, support defendant's assertion that the assignors' testimony at an examination before trial would be material and necessary to the defense of fraudulent procurement of an insurance policy (see CPLR 3101 [a]). Since plaintiff served the notice of trial two weeks after defendant served its answer and it is uncontroverted that defendant timely moved to vacate the notice of trial within 20 days of its receipt of same (see Uniform Rules for Civ Ct [22 NYCRR] § 208.17 [c]), the branch of defendant's motion seeking to strike the notice of trial is granted. However, as plaintiff's assignors are not directors, members or employees of plaintiff, defendant must subpoena them to compel their appearance at examinations before trial (see CPLR 3016 [b]; see also A.M. Med. Servs., P.C. v Allstate Inso Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order entered February 13, 2009 is vacated, the branch of defendant's motion seeking summary judgment dismissing the complaint is granted to the extent of dismissing the complaint insofar as it sought to recover upon the claim form dated March 22, 2007, the branch of defendant's motionseeking to strike the notice of trial and to compel plaintiff's assignors to attend examinations before trial is granted to the extent of striking the notice of trial, plaintiff's cross motion for summary judgment is denied, and the matter is remitted to the Civil Court for all further proceedings.

So the NOT was stricken so that defendant could issue a non-party subpoena for an EBT.  What happens when the non-party doesn't appear, assuming, of course, that the non-party doesn't appear.  It would make sense for the Appellate Term to provide some guidance.  Read JT's comments.

Almost forgot. There is an article in the NYSBA journal on non-party discovery by David Horowitz.

Points of Health Acupuncture, P.C. v Lancer Ins. Co., 2010 NY Slip Op 51455(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

The "who cares if he doesnt know how he knows, he's a partner" exception to Fogel.

MVAIC (condition precedent or coverage or both)

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 51454(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Under the circumstances presented, the Civil Court should have considered the affidavit submitted by MVAIC's claim representative rather than sua sponte rejecting it due to a de minimis violation of Uniform Rules for the Civil Court (22 NYCRR) § 208.4. The submissions in support of MVAIC's motion for summary judgment made a prima facie showing that plaintiff's assignor had failed to timely file a notice of claim (see Insurance Law § 5208 [a]), and plaintiff failed to demonstrate that its assignor had timely filed a notice of claim or sought leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). Consequently, defendant's motion for summary judgment should have been granted. Accordingly, the judgment is reversed, the order entered February 20, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

NOT NO-FAULT

Ferrara v De Ming Song, 2010 NY Slip Op 51472(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

The Civil Court granted defendant's motion, finding that defendant had made out a prima facie case and that, among other things, the affirmed reports of plaintiff's medical provider in Florida, submitted in opposition to defendant's motion, were not in admissible form, as the doctor was not licensed in the State of New York and, thus, was not authorized to execute an affirmation under CPLR 2106. The court noted, however, that had the reports been in admissible form, they would have been sufficient to demonstrate a serious injury.

Plaintiff thereafter moved for leave to renew defendant's motion and, upon renewal, to deny defendant's motion for summary judgment on the ground that triable issues of fact exist. In support of the motion, plaintiff submitted an affidavit from his Florida medical provider, sworn to before a notary public commissioned by the State of Florida, and resubmitted the provider's reports. The Civil Court granted plaintiff's motion for leave to renew and, upon renewal, denied defendant's motion for summary judgment on the condition that plaintiff's attorneys pay the sum of $100 to defendant's attorneys as costs, and the sum of $100 to the New York State Lawyers Fund for Client Protection. This appeal by defendant ensued in which the sole issue raised is that the Civil Court erred in granting plaintiff leave to renew.

Contrary to defendant's contention, the Civil Court did not improvidently exercise its discretion in granting the branch of plaintiff's motion seeking leave to renew, thereby allowing plaintiff the opportunity to submit its papers in proper form (see CPLR 2221 [e]; Arkin v Resnick, 68 AD3d 692 [2009]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Joseph v Joseph, 24 Misc 3d 141[A], 2009 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Shaw v Looking Glass [*2]Assoc., LP, 8 AD3d 100 [2004]; Acosta v Rubin, 2 AD3d 657 [2003]; Ramos v Dekhtyar, 301 AD2d 428 [2003]). We note that defendant has raised no objection to the form of plaintiff's resubmitted papers.

Nicholas Cabrini, Inc. v Hagenbart, 2010 NY Slip Op 51443(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

CPLR 3123 (a) requires a party to respond to a notice to admit within 20 days of service of the notice "or within such further time as the court may allow," and further provides that "the party to whom the request is directed [must] serve[] upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail why he cannot truthfully either admit or deny those matters" (emphasis added).

After reviewing defendants' response to plaintiff's notice to admit, wherein defendants explained why they could not either admit or deny the first item in plaintiff's notice to admit and denied the other two items in the notice, we find that the Civil Court properly determined that defendants' response was not so evasive as to be a nullity.

Turning to the timeliness of defendants' response to the notice, in Alford v Progressive Equity Funding Corp. (144 AD2d 756 [1988]), a case analogous to the instant case, the plaintiffs moved for summary judgment on December 2, 1987, based on the defendants' failure to respond to the plaintiffs' notice to admit, which had been served on November 5, 1987. On December 7, 1987, the defendants served a response to the plaintiffs' notice to admit. The Supreme Court denied the plaintiffs' motion for summary judgment, and, on appeal, the Appellate Division, Third Department, held that the Supreme Court had properly exercised its discretionary power to extend the time within which the defendants had to respond to the plaintiffs' notice to admit. The Appellate Division further held that since the defendants had not admitted all of the material facts at issue, the Supreme Court had properly denied the plaintiffs' motion for summary judgment.

Similarly, defendants in the case at bar were 15 days late in serving their response to plaintiff's notice to admit. Thus, the Civil Court did not improvidently exercise its discretion in extending the time within which defendants had to respond to the notice. Since defendants have not admitted all of the material facts at issue, the Civil Court properly denied the branch of plaintiff's motion which sought summary judgment (see id.). Accordingly, the order, insofar as appealed from, is affirmed.

What, no cite to Dan Med?  Bajaj?  I'm disappointed.  If any of you want to read further on the use of NTAs in no-fault.  I co-authored an article in the NYLJ on the issue with Dave Barshay, the new author of NFP, and while the AT has not seen fit to cite to it, the Appellate Division has.  Click here to get all the links and what not.

W-9’s and Settlements: CPLR § 5003-a

CPLR § 5003-a. Prompt payment following settlement

Klee v Americas Best Bottling Co., Inc., 2010 NY Slip Op 06361 (App. Div., 2nd, 2010)

When the defendants failed to pay the sum due under the settlement agreement within 21 days of tender of the release and stipulation of discontinuance, the plaintiff sought to enter judgment against them in accordance with CPLR 5003-a. On August 11, 2009, a judgment was entered in favor of the plaintiff in the agreed-upon settlement amount, together with interest, costs, and disbursements. Shortly thereafter, the defendants moved, inter alia, to vacate the judgment, arguing that the Internal Revenue Code required the plaintiff's attorney to comply with their request [*2]for a completed Form W-9, and that the plaintiff had procured the judgment by misrepresenting that he had provided them with all necessary settlement documents. While the motion was pending, the plaintiff's attorney completed Form W-9, and the defendants paid the sum of $400,000 required by the settlement agreement. The plaintiff opposed vacatur of the judgment, contending that the defendants' failure to pay the settlement proceeds within 21 days after his tender of the release and stipulation of discontinuance entitled him to recover interest, costs, and disbursements pursuant to CPLR 5003-a. The plaintiff also noted that his attorney had provided the defendants with his taxpayer identification number in the cover letter accompanying the settlement documents, and argued that an attorney receiving "gross proceeds" had no obligation to certify his or her taxpayer identification number to the payor on Form W-9. The Supreme Court granted the defendants' motion, relying upon the decision of the Appellate Division, First Department, in Cely v O'Brien & Kreitzberg (45 AD3d 368) to conclude, in essence, that the plaintiff's attorney was required to provide the defendants with a completed Form W-9 as a condition precedent to payment of the settlement proceeds. We disagree.

CPLR 5003-a was enacted in 1992 to encourage prompt payment of settlements (see Cunha v Shapiro, 42 AD3d 95, 101; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5003-a: 121). To this end, the statute requires any settling defendant, subject to certain exceptions not applicable here (see CPLR 5003-a[b], [c], [d]), to pay all sums due to any settling plaintiff "within twenty-one days of tender, by the settling plaintiff to the settling defendant[s], of a duly executed release and a stipulation discontinuing [the] action executed on behalf of the settling plaintiff"(CPLR 5003-a[a]). Where, as here, the release and stipulation of discontinuance are tendered by mail, the 21-day period is measured from receipt of the documents (see Leipold v Arnot Ogden Med. Ctr., 46 AD3d 1299, 1300; Cunha v Shapiro, 42 AD3d at 101). If the settling defendant fails to pay the sum due under the settlement agreement within 21 days of tender of the required documents, the statute authorizes the plaintiff to enter, without further notice, a judgment in the amount of the settlement, which is to include interest, costs, and disbursements (see CPLR 5003-a[e]).

Here, the plaintiff fulfilled his obligations under CPLR 5003-a by tendering a duly executed release and stipulation of discontinuance to the defendants' attorney. Neither CPLR 5003-a, nor the parties' stipulation of settlement, imposed any additional requirement on the plaintiff or his attorney. Regardless of whether the defendants' request that the plaintiff's attorney complete Form W-9 certifying his tax identification number was reasonable, as they contend, there is no statutory authority for elevating the completion of this form to a condition precedent for payment of the sum due in settlement of a personal injury claim (see In re Emergency Beacon Corp., 52 B.R. 828, 830; cf. Liss v Brigham Park Coop. Apts. Sec. No. 3, 264 AD2d 717).

Although we are aware that the Appellate Division First Department, reached a contrary conclusion in Cely v O'Brien & Kreitzberg (45 AD3d 368), we do not find the rationale of that case persuasive. Compensation for personal injuries does not generally constitute gross income (see 26 USC § 104[a][2]), and the defendants made no showing that the portion of the personal injury settlement which the plaintiff's attorney may be entitled to retain as a legal fee is actually a "reportable payment" subject to the reporting requirements of the Internal Revenue Code (see 26 USC § 3406). Moreover, even assuming that the defendants' insurance carrier is mandated to report payment of the settlement proceeds to the plaintiff's attorney, the defendants have not demonstrated that the provision of Form W-9 is the sole means by which the carrier can comply with its reporting obligations. Under these circumstances, we decline to effectively amend the terms of the parties' stipulation of settlement by conditioning payment of the settlement proceeds upon completion of the form. Granting settling defendants the unilateral right to withhold payment in these circumstances would significantly undercut the statutory goal of CPLR 5003-a to ensure the prompt payment of settlement proceeds upon tender of the statutorily prescribed documents. Accordingly, the defendants' failure to timely pay the sum due under the settlement agreement entitled the plaintiff to enter judgment including interest, costs, and disbursements pursuant to CPLR 5003-a(e) (see Leipold v Arnot Ogden Med. Ctr., 46 AD3d 1299; Sealey v Jamaica Buses, Inc., 39 AD3d 526, 527; Hadier v Remington Place Assoc., 302 AD2d 428). [*3]

The defendants' contention that this appeal is barred by the doctrine of accord and satisfaction because the plaintiff cashed the settlement check while their motion to vacate the judgment was pending is without merit (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Pepe v Tannenbaum, 279 AD2d 620).

The bold is mine.  Head over to New York Appellate Law Blog for the short version.  5003-a is oddly similar to the no-fault regs.

CPLR R. 3212(f)

CPLR R. 3212(f)

Anne Koplick Designs, Inc. v Lite, 2010 NY Slip Op 06356 (App. Div., 2nd, 2010)

Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability (see CPLR 3212[b]; Yiouti Rest. v Sotiriou, 151 AD2d 744, 745). In support of their motion, the plaintiffs submitted an expert affirmation of an attorney establishing that the defendant Justin N. Lite failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, among other things, advising the plaintiffs to default in a lawsuit commenced against them in California and advising them that a default judgment obtained in California would not be enforceable in New York, a clearly incorrect statement of the law (see Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511; Yiouti Rest. v Sotiriou, 151 AD2d at 745). The plaintiffs' submissions also established that, but for the defendants' malpractice, they would have succeeded in defending the underlying claim. In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). [*2]

Moreover, while determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615; see Williams v D & J School Bus, Inc., 69 AD3d 617, 619; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). The defendants failed to provide an evidentiary basis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d 619, 620).

Also interesting was the portion of about out-of-state default judgments.  I checked the two sites that the Court cites to, but neither appear to say anything about out-of-state default judgments.  Compare Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20130 (App. Term, 2nd, 11th and 13th, Jud. Dists., 2010), which cites to Zimmerman v Tower Ins. Co. of N.Y., 13 AD3d 137 (App. Div., 1st, 2004)

CPLR R. 5015: Can’t require a bond to vacate a judgment that doesn’t exist

CPLR R. 5015 Relief from judgment or order

Doris v Lewis, 2010 NY Slip Op 06357 (App. Div., 2nd, 2010)

The Supreme Court erred in requiring the defendant to post a bond. A court which renders a "judgment or order may relieve a party from it upon such terms as may be just" (CPLR 5015[a]), including the imposition of a bond or undertaking (see Yadid, LLC v GCW Bell Corp., 48 [*2]AD3d 799, 800; Civil Serv. Empls. Assn. v County of Nassau, 296 AD2d 474, 475; Testwell Craig Labs. v Charles Assoc., 264 AD2d 836; Harp v Tednick Corp., 256 AD2d 904, 905; F & K Supply v Balbec Corp., 182 AD2d 911). However, in the instant case, the Supreme Court did not issue an order granting the plaintiffs' motion for leave to enter judgment upon the defendant's default and did not render a default judgment. Thus, there was no judgment or order from which the defendant was seeking to be relieved.

It's pretty rare that you find a decision where the court requires a bond as a condition of vacatur.  Even with the facts as they are in this case, it's still an interesting decision.