Category: CPLR

Intergalactic Bugs and CPLR R. 3212 and CPLR R. 2221. Happy 4th of July.

Normally, I don’t write anything
special for the 4th of July. 
I’m going to continue that tradition.  I will, however, be doing my civic and patriotic duty:
watching Starship Troopers.  The
number one threat facing the country today is intergalactic bugs.  I, for one, will be prepared.

In the past few days, decisions
have come out from every court but the Appellate Term, Second Department.  Creating a decision that allows an
expert to base her testimony on hypotheticals alone[1]
probably took a lot out of them, so they get a pass for their inactivity.

Today's post will cover the recent
3212 decisions.  I was going to put all of the recent decisions in one
post, but decided that it would take up too much time and space.  And,
nobody would read anything that long.

The last decision also discusses relaxing CPLR R.
2221(e)(2)'s evidence available at the time the original motion was made, requirement, in the interest of justice.  CPLR R.  2221(e) provides:

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

I'm testing out writing my posts in word, so bear with me while I try to figure out the formatting.  From the looks of it, this will be a short lived experiment.

CPLR R. 3212 Summary Judgment

Estate of Marie Merna v Simuro, 2010 NY Slip Op 05725 (App. Div., 2nd,
2010)

As the proponent of the motion for
summary judgment, the bank was required to make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Matin v Chase
Manhattan Bank, 10 AD3d 447, 448). The bank failed to meet
this burden, as the evidence it submitted was insufficient to eliminate any triable
issues of fact as to whether the relevant account statements were "made
available" to the plaintiff before January 5, 2005, the date on which she
discovered the forgeries (UCC 4-406[4]; see
Matin v Chase Manhattan Bank, 10 AD3d at 448-449; Robinson Motor Xpress,
Inc. v HSBC Bank, USA, 37 AD3d 117).

***

However, the Supreme Court
improperly denied that branch of the bank's motion which was to strike the
plaintiff's demand for a jury trial[2]
(see generally Brian Wallach Agency v
Bank of N.Y., 75 AD2d 878; Massry
Importing Co. v Security Natl. Bank, 49 AD2d 750; David v Manufacturers Hanover Trust Co., 59 Misc 2d 248).

Espada v City of New York, 2010 NY Slip Op 05724 (App. Div., 2nd,
2010)

Contrary to the plaintiff's
contention, the defendants' motion was not premature, as the plaintiff failed
to offer an evidentiary basis to suggest that discovery may lead to relevant
evidence or that facts essential to opposing the motion were exclusively within
the defendants' knowledge and control (see
CPLR 3212[f]; Hill v Ackall, 71
AD3d 829; Kimyagarov v Nixon
Taxi Corp., 45 AD3d 736, 737).

Evangelista v Kambanis, 2010 NY Slip Op 05726 (App. Div., 2nd,
2010)

"A party opposing summary
judgment is entitled to obtain further discovery when it appears that facts
supporting the opposing party's position may exist but cannot then be
stated" (Matter of Fasciglione,
73 AD3d 769, 769; see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926).
Here, at the time the defendant landowners moved for summary judgment, they had
not been deposed. Moreover, it appears that information concerning whether they
created the alleged dangerous condition on the sidewalk abutting their property
which caused the plaintiff's accident, or enjoyed a special use of the sidewalk
which gave rise to the dangerous condition, may be within their exclusive
knowledge (see Adler v City of New York,
52 AD3d 549, 549-550). Under these circumstances, the Supreme Court did not
improvidently exercise its discretion in denying, as premature, the defendants'
motion for summary judgment dismissing the complaint (see Matter of Fasciglione, 73 AD3d at 769; Gruenfeld v City of New Rochelle, 72 AD3d 1025; Rodriguez v DeStefano, 72 AD3d at 926; Harvey v Nealis, 61 AD3d 935, 936).

Atiencia v Mbbco Ii, LLC, 2010 NY Slip Op 05872 (App. Div., 1st,
2010)

A court, in the course of deciding
a motion, is empowered to search the record and award summary judgment to a
nonmoving party (see CPLR 3212(b); Lennard v Khan, 69
AD3d 812, 814 [2010]). However, with respect to the June 2009
order, the motion court erred in dismissing the Labor Law § 241(6) claim
against Farrell, as that claim was not placed before the court on plaintiffs'
summary judgment motion (see Dunham v
Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

Regarding the October 2009 order,
the motion court should have granted the motions to renew. Although the newly
submitted evidence was available at the time of the prior motion, the court
"ha[d] discretion to relax this requirement and to grant such a motion in
the interest of justice" (Mejia v
Nanni, 307 AD2d 870, 871 [2003]). Not only did plaintiffs and MBBCO offer
reasonable justification for failing to submit the evidence submitted on the motion,
but the new facts submitted do, in fact, change the prior determination (CPLR
2221[e][2]).

[1] I'm referring to Urban
Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U)
(App. Term, 2nd, 11th & 13th Jud. Dists. 2010).  I have a long
post about it over at the No-Fault blog.  Here is a snippet of the
decision.

 

Defendant
was not attempting to prove that Rafailova was injured as documented in her
medical records, or that she was treated as set forth in those records.
Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records
were true, the treatment allegedly provided was not medically necessary.
Therefore, as defendant was not using the underlying medical records for their
truth, such records were not being
used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303
AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is
distinguishable from a situation in which a medical expert relies upon medical
records to establish the fact of an injury (see e.g. Hambsch v New York City
Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).
Consequently, plaintiff’s argument that defendant failed to establish the
reliability of the underlying medical records in support of its claim that the
treatment provided was not medically necessary is irrelevant.  (Emphasis Added)

 

[2] This
footnote is mine. In the cases the Appellate Division cites, there was a prior agreement/contract waiving the right to a jury.  Compare,
just for fun, Haber v Cohen, 2010 NY Slip Op 05730 (App. Div., 2nd, 2010)(“Contrary
to the defendants' contention, the amendment of their counterclaims to withdraw
their requests for equitable relief did not revive their right to a trial by
jury”)(Citations omitted).

CPLR § 3123 (NTA)

Easy to ignore and easy to screw up.  Do either and the consequences can be surprising and severe.  This is a big deal.

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

New Image Constr., Inc. v TDR Enters. Inc., 2010 NY Slip Op 05681 (App. Div., 1st, 2010)

Plaintiff, a contractor, brought this action to recover money due for
the build out of a restaurant pursuant to a contract entered into by
TDR and Green. In support of its motion, plaintiff submitted two notices
to admit the genuineness of documents and a notice to admit purported
facts. Although served with the notices to admit, defendants did not
respond to any of them. Among the documents covered by the first two
notices to admit was a June 2006 construction agreement executed by
plaintiff, and by Green, individually and on behalf of TDR. The
agreement provided for the payment of $200,000 for plaintiff's work.
Payments were to be made in five equal installments of $40,000 beginning
on the signing of the contract. The agreement set forth in detail the
scope of the work, and required that any changes to the agreement be in
writing.

Other documents covered by the notices to admit reflected a loan
to defendants by PNC Bank, for the payment of plaintiff's fee, among
other things. These documents show defendants' representation to the
bank that plaintiff had completed its work, a requirement for the
disbursement of the loan funds. The documents also included cancelled
checks made payable to plaintiff that were apparently endorsed and
cashed by defendants instead. Defendants are deemed to have admitted the
genuineness of the said documents because they did not timely respond
to plaintiff's notice (see CPLR 3123; Kowalski v Knox, 293
AD2d 892 [2002]). Hence, plaintiff's prima facie entitlement to
judgment as a matter of law is established. We note, however, that
plaintiff's third notice to admit was improper, since it impermissibly
"compell[ed] admission of fundamental and material issues or ultimate
facts that can only be resolved after a full trial" (Hawthorne Group v RRE Ventures, 7 AD3d 320,
324 [2004]).

Since defendants are deemed to have admitted the genuineness of
the construction [*2]agreement, their
attempts to disaffirm it are unavailing. We also reject defendants'
claim that they terminated the contract due to plaintiff's failure to
diligently complete the work. Defendants do not claim to have served
plaintiff with a 14-day notice to cure and written notice of termination
which were contractual prerequisites to termination. Defendants'
purported termination of the contract was, therefore, ineffective (see
e.g. MCK Bldg. Assoc. v St. Lawrence Univ., 301 AD2d 726, 728
[2003], lv dismissed 99 NY2d 651 [2003]). The court properly
denied the motion for summary judgment as against defendant Terrance
Davis as it has not been shown that he dealt with plaintiff in an
individual capacity (see Kibler v Gilliard Constr., Inc., 53 AD3d 1040,
1042 [2008]).

The bold is mine.

Aggrieved

Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010)

The threshold issue raised by these facts is whether the limousine defendants are aggrieved by the dismissal of the complaint against the van defendants. The requirement that an appellant be aggrieved by a judgment or order appealed from is contained in CPLR 5511, which states:

"§ 5511. Permissible appellant and respondent. An aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party. He shall be designated as the appellant and the adverse party as the respondent" (emphasis added).

When the revisers of the laws on civil practice were in the process of creating the CPLR, they were unable to formulate a definition for the word "aggrievement" and they determined to leave that definition to case law (see Revisers' Notes in McKinney's Cons Laws of NY, Book 7B, CPLR 5511, at 129). At that time, the classic attempt at a broad definition of aggrievement was found in the case of Matter of Richmond County Socy. for Prevention of Cruelty to Children (11 AD2d 236, affd 9 NY2d 913, cert denied sub nom. Staten Island Mental Health Soc., Inc. v Richmond County Soc. For Prevention of Cruelty to Children, 368 US 290), in which it was said that "the test [of aggrievement] is whether the person seeking to appeal has a direct interest in the controversy which is affected by the result and whether the adjudication has a binding force against the rights, person or property of the party or person seeking to appeal" (id. at 239). Experience with that definition has shown that while legally correct, it does not provide a clear test which is relatively easy to apply with consistency.

 

For an analysis of the decision, head over to Full Court Pass.  I'm too busy winning awards and shit.

No Unfettered Disclosure; CPLR § 3101

CPLR § 3101 Scope of disclosure

Foster v Herbert Slepoy Corp., 2010 NY Slip Op 05509 (App. Div., 2nd, 2010)

CPLR 3101(a) requires "full disclosure of all matter material and
necessary in the prosecution or defense of an action." "The phrase
material and necessary' should be interpreted liberally to require
disclosure, upon request, of any facts bearing on the controversy which
will assist preparation for trial by sharpening the issues and reducing
delay and prolixity. The test is one of usefulness and reason'" (Friel
v Papa, 56 AD3d 607, 608, quoting Allen v Crowell-Collier Publ.
Co., 21 NY2d 403, 406). A party, however, does not have the right to
"uncontrolled and unfettered disclosure" (Gilman & Ciocia, Inc. v
Walsh, 45 AD3d 531, 531; see Barouh Eaton Allen Corp. v
International Bus. Machs. Corp., 76 AD2d 873). " It is incumbent on
the party seeking disclosure to demonstrate that the method of discovery
sought will result in the disclosure of relevant evidence or is
reasonably calculated to lead to the discovery of information bearing on
the claims'" (Vyas v Campbell, 4 AD3d 417, 418, quoting Crazytown
Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421).

"The Supreme Court has broad discretion in the supervision of
discovery, and its determinations should not be disturbed on appeal
unless improvidently made" (Casabona v Huntington Union Free School
Dist., 29 AD3d 723, 723; see Andon v 302-304 Mott St. Assoc., 94
NY2d 740, 746; Milbrandt & Co., Inc. v Griffin, 19 AD3d 663;
Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518).
Here, the Supreme Court providently exercised its discretion in
concluding, inter alia, that the additional discovery sought by the
appellants was neither material nor necessary to the prosecution or
defense of any claim (see CPLR 3101[a]; Casabona v Huntington
Union Free School Dist., 29 AD3d 723; Vyas v Campbell, 4 AD3d
417; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460).

The bold is mine.

[updated 6/27/10:  I added links to Vyas and Crazytown].

BP CPLR R. 3043 (use it right)

CPLR R. 3043 Bill of particulars in personal injury actions

Mahr v Perry, 2010 NY Slip Op 05369 (App. Div., 2nd, 2010)

The appellants' objections to the plaintiffs' responses to demands number 4, 14, 18, and 19 are without merit, since none of the information sought in those demands is expressly authorized under CPLR 3043 (see Feraco v Long Is. Jewish-Hillside Med. Ctr., 97 AD2d 498; Williams v Shapiro, 67 AD2d 706; Johnson v Charow, 63 AD2d 668).

The appellants' objections to the plaintiffs' responses to demands number 3, 8, and 10 are also without merit. The plaintiffs properly objected to each of these demands, as they improperly sought evidentiary material (see Toth v Bloshinsky, 39 AD3d 848, 849; Benn v O'Daly, 202 AD2d at 465). Demand 8 also was improper on the ground that it sought to compel the plaintiffs to "set forth the manner in which the physician failed to act in accordance with good and accepted medical practice," which is knowledge "a physician is chargeable with knowing" (Toth v Bloshinsky, 39 AD3d at 849; see Dellaglio v Paul, 250 AD2d 806).

The bold is mine.

The inherent power to vacate CPLR 5015

Katz v Marra, 2010 NY Slip Op 04957 (App. Div., 2nd 2010)

Pursuant to CPLR 5015(a), "[t]he court which rendered a judgment or
order may relieve a party from it upon such terms as may be just." This
statute sets forth certain grounds for vacatur, including excusable
default, newly-discovered evidence, fraud, misrepresentation, and lack
of jurisdiction. As recognized by the Court of Appeals, the drafters of
CPLR 5015 did not envision that this statute would provide an exhaustive
list of the grounds for vacatur (see Woodson v Mendon Leasing Corp.,
100 NY2d 62, 68). Instead, a court retains "its discretionary power
to vacate its own judgment for sufficient reason and in the interests
of substantial justice'" (Goldman v Cotter, 10 AD3d 289, 293, quoting Woodson
v Mendon Leasing Corp., 100 NY2d at 68; see Ladd v Stevenson, 112
NY 325, 332). However, "[a] court's inherent power to exercise control
over its judgment is not plenary, and should be resorted to only to
relieve a party from judgments taken through [fraud,] mistake,
inadvertence, surprise or excusable neglect" (Matter of McKenna v
County of Nassau Off. of County Attorney, 61 NY2d 739, 742 [internal
quotation marks omitted]; see Long Is. Light Co. v Century Indem. Co., 52
AD3d 383, 384; Quinn v Guerra, 26 AD3d 872, 873).

***

Here, the defendant failed to establish grounds warranting relief under
CPLR 5015(a)(1)

***

In our view, this case does not warrant the invocation of a court's
inherent power to vacate its orders and judgment in the interest of
substantial justice. Notwithstanding the dissent's characterization,
there is nothing unique or unusual about this case. This Court has
previously found that claims of financial distress are not sufficient to
justify the exercise of the court's inherent discretionary power to
vacate its own judgment in the interests of substantial justice (see Matter of Dayton Towers Corp. v Gethers, 24
AD3d 663, 664). Simply stated, this is not an appropriate case in
which to exercise the broad equity power of a court to vacate its own
orders and judgment.
We note that the cases cited by the dissent for the proposition
that vacatur is warranted in the interest of substantial justice are
inapposite and/or distinguishable. For instance, in Ruben v American
and Foreign Ins. Co. (185 AD2d 63), the court vacated a judgment,
upon the "joint" motion and consent of the parties. Other cases relied
upon by the dissent, such as Government Empls. Ins. Co. v Employment
Commercial Union Ins. Co. (62 AD2d 123) and Soggs v Crocco (247
AD2d 887), did not involve a motion to vacate an order or judgment
entered upon default.

In May of 2009, I posted a case where the Appellate Division, Third Department, found facts sufficient to warrant vacatur in the interest of justice: Kostun
v Gower, 61 AD3d 1307 (App. Div., 3rd, 2009).  That case was also interesting because of FN 1.  In June of 2009, I posted a Appellate Division, First Department, case, where the court found sufficient facts: Diane
v Ricale Taxi, Inc., 2009 NY Slip Op 05680 (App. Div.,
1st, 2009).

Admissions by omission CPLR § 3018(a)

CPLR
§ 3018 Responsive pleadings
(a) Denials

Miller v Bah, 2010 NY Slip Op 04753 (App. Div., 2nd, 2010)

After first considering the evidence presented by the plaintiff, the
Supreme Court next considered certain admissions made by the defendant.
In this regard, the complaint contained certain allegations concerning
the defendant's ownership and operation of a particular vehicle at the
time of the accident, which the defendant failed to address in his
answer. The defendant therefore was deemed to have admitted the truth of
those allegations (see CPLR 3018[a]; Maplewood, Inc. v Wood, 21
AD3d 933), and "admissions . . . in pleadings are always in evidence
for all the purposes of the trial of [an] action" (Braun v Ahmed, 127
AD2d 418, 422 [internal quotation marks omitted]). The Supreme Court
found that even when the evidence was coupled with the defendant's
admissions, the plaintiff failed to "link" the defendant to the
offending vehicle. Thus, the Supreme Court granted the defendant's
motion pursuant to CPLR 4401 for judgment as a matter of law.

Appearance by Service CPLR R. 320

CPLR R. 320 Defendant's appearance

Goonan v New York City Tr. Auth., 2010 NY Slip Op 04742 (App. Div., 2nd, 2010)

A plaintiff may seek leave to enter a default judgment when a defendant,
among other things, has failed to appear within the time required (see
CPLR 3215[a]; Okeke v Ewool, 66 AD3d 978, 979). A defendant
appears, inter alia, by serving an answer upon the plaintiff (see
CPLR 320[a]; Cerrito v Galioto, 216 AD2d 265, 266; cf. Ahmad v
Aniolowiski, 28 AD3d 692, 693). Contrary to the plaintiff's
contention, there is no statutory or other requirement that an answer,
timely served upon a plaintiff, must also be filed with the clerk of the
relevant court in order for a defendant to appear in the action. Here,
the defendant appeared in the action by timely serving its answer upon
the plaintiff (see CPLR 320[a]; Siegel, NY Prac § 110, at 199
[4th ed]) and, therefore, there was no default.

CPLR R. 3212(f) Hope and Speculation not Enough

CPLR R. 3212
Motion for summary judgment
(f)
Facts unavailable to opposing party

Essex Ins. Co. v Michael Cunningham Carpentry, 2010 NY Slip Op 04732 (App. Div., 2nd, 2010)

Andreassen's contention that the motion for summary judgment was
premature is without merit. It failed to offer any evidentiary basis to
suggest that discovery may lead to relevant evidence. The hope and
speculation that evidence sufficient to defeat the motion might be
uncovered during discovery was an insufficient basis to deny the motion (see Peerless Ins. Co. v Micro Fibertek, Inc., 67
AD3d 978, 979; Tedesco v Tedesco, 64 AD3d 583, 584; Conte v Frelen Assoc., LLC, 51 AD3d 620,
621).

There are plenty of cases on this issue, but I like the brevity of this one.

Just after I read this one, I found another.

Family-Friendly Media, Inc. v Recorder Tel. Network, 2010 NY Slip Op 04735 (App. Div., 2nd, 2010)

CPLR 3212(f) permits a party opposing summary judgment to obtain further
discovery when it appears that facts supporting the position of the
opposing party exist but cannot be stated (see Aurora Loan Servs.,
LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Juseinoski v New
York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). Under the
circumstances of this case, the Supreme Court properly denied that
branch of the plaintiff's motion which was for summary judgment on the
complaint as premature, without prejudice to renew (see Matter of
Fasciglione,AD3d, 2010 NY Slip Op 03926 [2d Dept 2010]; Baron v
Incorporated Vil. of Freeport, 143 AD2d [*2]792,
792-793).

And one from the First Department.

Montalvo v Chiaramonte, 2010 NY Slip Op 04707 (App. Div., 1st, 2010)

Neither plaintiffs nor Chiaramonte submitted any affidavits or evidence
to show that "facts essential to justify opposition [to the Tarts'
motion] may exist but cannot then be stated" (CPLR 3212[f]). Nor did
they ever challenge the motion court's finding that the "Tart vehicle
never came into contact with the decedent."

Waiver and Amendment CPLR R. 3211(e); CPLR R. 3025(b)

CPLR R. 3025 Amended and supplemental
pleadings
(b) Amendments and
supplemental pleadings by leave

CPLR R. 3211 Motion to dismiss
(e)
Number,
time and waiver of objections; motion to plead over

Complete Mgt., Inc. v Rubenstein, 2010 NY Slip Op 04726 (App. Div., 2nd, 2010)

However, the Supreme Court improvidently exercised its discretion in
denying that branch of the defendants' motion which was for leave to
amend their answer to assert the affirmative defense of lack of capacity
to sue. Although the defendants waived this defense by failing to raise
it in their answer or in a motion to dismiss made prior to answering (see
CPLR 3211[a][3];[e]; FBB Asset Mgrs. v Freund, 2 AD3d 573, 574; Harte
v Richmond County Sav. Bank, 224 AD2d 585, 586), " defenses waived
under CPLR 3211(e) can nevertheless be interposed in an answer amended
by leave of court pursuant to CPLR 3025(b) so long as the amendment does
not cause the other party prejudice or surprise resulting directly from
the delay'" (Nunez v Mousouras, 21 AD3d 355, 356, quoting Endicott
Johnson Corp. v Konik Indus., 249 AD2d 744, 744). Under the
circumstances of this case, the granting of leave to amend would not
have resulted in prejudice or surprise to the plaintiff, and the
proposed amendment was neither palpably insufficient nor totally devoid
of merit (see Bajanov v Grossman, 36 AD3d 572, 573; Nunez
v Mousouras, 21 AD3d at 356).

Compare with

Sackett v Konigsberg, 2010 NY Slip Op 04765 (App. Div., 2nd, 2010)

Contrary to the plaintiff's contention, the Supreme Court properly
granted the defendants' motion to strike the amended complaint based
upon her failure to comply with CPLR 3025. The record indicates that the
plaintiff served her amended complaint well beyond the period within
which an amended pleading may be served as of right (see CPLR
3025[a]) without first obtaining leave of the court or the stipulation
of the parties (see Nikolic v Federation Empl. & Guidance Serv.,
Inc., 18 AD3d 522, 524).

The appeal from the order dated March 17, 2008, must be dismissed
as abandoned, as the plaintiff does not seek in her brief reversal or
modification of any portion of the order (see Sirma v Beach, 59
AD3d 611, 614; Bibas v Bibas, 58 AD3d 586, 587).