Category: CPLR

Late Supplemental BP

CPLR R. 3043 Bill of particulars in personal injury actions

(b) Supplemental bill of particulars without leave. A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities.

(c) Discretion of court. Nothing contained in the foregoing shall be deemed to limit the court in denying in a proper case, any one or more of the foregoing particulars, or in a proper case, in granting other, further or different particulars.

Spiegel v Gingrich, 2010 NY Slip Op 04645 (App. Div., 1st, 2010)

The motion court, although it properly concluded that RSD was not a
"new" injury, but a sequela of plaintiff's original injury, granted the
motion to strike the supplemental bill of particulars because it was
served 12 days before trial was scheduled to commence. This alleged
"delay" resulted in the adjournment of the trial without date.

The CPLR contemplates that supplemental bills of particulars may
be served 30 days before trial without leave of court (see CPLR
3043[b]). However, the CPLR grants a motion court the discretion to
determine whether to allow a "late" supplemental bill, or an amended
bill of particulars, provided no prejudice to the defendant results.
Indeed, CPLR 3043[c], entitled "discretion of court," provides,
"[N]othing contained in the foregoing shall be deemed to limit the court
in denying in a proper case, any one or more of the foregoing
particulars, or in a proper case, in granting other, further or
different particulars." 

Defendant herein cannot
seriously contend that he was prejudiced. He argued, before the motion
court, that evidence of RSD was in the record as early as June 2007,
citing Dr. Doolan's assessment. Further, the adjournment of the trial
without a date furnished ample opportunity for defendant to conduct
discovery concerning plaintiff's allegation that she suffers from RSD.
Given the manifest lack of prejudice to defendant, together with the
adjournment of the trial without a date, it was an improvident exercise
of discretion for the motion court to grant the motion to strike
plaintiff's supplemental bill of particulars, based solely on the fact
that the supplemental bill was served 12 days before the scheduled trial
date.

The pretrial order limiting the scope of plaintiff's expert's
expected trial testimony is not appealable before a judgment after trial
is rendered (Santos v Nicolas, 65 AD3d 941 [2009]). Thus,
we dismiss the appeal from this order.

All concur except Tom, J.P. and DeGrasse, J. who dissent
in part in a memorandum by DeGrasse, J. as follows:

DeGRASSE,
J. (dissenting in part)

I respectfully dissent. Plaintiff was injured when she slipped and
fell on defendant's boat. Her supplemental amended bill, served 14 days
before trial, contravened the 30-day deadline set forth in CPLR 3043(b).
She did not seek leave to serve a late supplemental bill, and offered
no reasonable excuse for her delay (see Torres v Educational Alliance,
300 AD2d 469, 470-471 [2002]).

The pretrial order limiting the scope of plaintiff's expert's
expected trial testimony is not appealable before a judgment after trial
is rendered (Santos v Nicolas, 65 AD3d 941 [2009]).
Accordingly, I would affirm the order entered September 28, 2009, which
granted defendant's motion to strike plaintiff's supplemental amended
bill of particulars, and dismiss the appeal from the order entered on
the same date which granted defendant's motion to preclude plaintiff's
biomedical engineer from testifying at trial as to proximate cause.

CPLR § 202 Plaintiff is a resident of its state of incorporation

 CPLR § 202 Cause of action accruing without
the state

Verizon Directories Corp. v Continuum Health Partners, Inc., 2010 NY Slip Op 04640 (App. Div., 1st, 2010)

For purposes of CPLR 202, plaintiff is a "resident" of, and its cause of
action accrued in, Delaware, the state of its incorporation (see
Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 529-530 [1999]; American
Lumbermens Mut. Cas. Co. of Ill. v Cochrane, 129 NYS2d 489 [1954], affd
284 App Div 884 [1954], affd 309 NY 1017 [1956]). We reject
plaintiff's contention that, for purposes of the statute, it is a
"resident" of New York, or that its cause of action accrued in this
State, by virtue of its authorization to do business and asserted
extensive presence here (see Global Fin. Corp., 92 NY2d at
528-29). Hence, New York's six-year statute of limitations does not
apply (see CPLR 202),
and the action is barred by Delaware's one-year statute (10 Del Code
Ann, tit 10, § 8111).

No Subsitute for SJ: CPLR R. 3212(a)

CPLR R. 3212(a)

Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010)

Initially, we note that while the defendants characterized their motion as one for in limine relief to dismiss the complaint for failure to establish a prima facie case, the record reveals that the motion actually was one for summary judgment. "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" (Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810-811; see Rivera v City of New York, 306 AD2d 456, 457). Moreover, the Supreme Court improvidently exercised its discretion in considering this late motion since the defendants failed to offer any excuse for their failure to timely move for summary judgment (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648; Nobile v Town of Hempstead, 17 AD3d 647; Clermont v Hillsdale Indus., 6 AD3d 376, 377). Such failure warrants denial of the motion without consideration of the merits thereof (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 306 AD2d 456). Accordingly, we reinstate the complaint.

[Edit 6/4] found another one

West Broadway Funding Assoc. v Friedman, 2010 NY Slip Op 04781 (App. Div., 2nd, 2010)

Choose your reasonable excuse wisely, you might get stuck with it. CPLR R. 5015

CPLR R. 5015

Tadco Constr. Corp. v Allstate Ins. Co., 2010 NY Slip Op 04362 (App. Div., 2nd, 2010)

The plaintiff moved for leave to enter a default judgment upon the
defendant's failure to answer or appear and the defendant thereafter
cross-moved to vacate its default on the ground that it had not been
properly served with the Summons with Notice. Although the Supreme Court
determined, after a hearing, that the defendant had been properly
served pursuant to CPLR 308(2), it vacated the defendant's default and
granted the defendant leave to serve an answer.

On appeal, the plaintiff contends that the Supreme Court erred in
vacating the defendant's default. In addition, the defendant seeks to
challenge by way of cross-appeal the Supreme Court's determination that
it was properly served with process. Although the defendant's
cross-appeal must be dismissed on the ground that it is not aggrieved by
the order vacating its default, the contentions raised by the defendant
can be considered as alternative grounds for affirmance (see
Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,
545-546; Matter of Allstate Ins. Co. v Leach, 15 AD3d 649).
[*2]

In seeking to vacate its
default, the defendant was required to demonstrate a reasonable excuse
for the default and a potentially meritorious defense (see Sime v
Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc. v L & L
N.Y. Food Corp., 18 AD3d 851; Fekete v Camp Skwere, 16 AD3d
544). Contrary to the defendant's contentions, the evidence adduced at
the hearing fully supports the Supreme Court's determination that it was
properly served with process pursuant to CPLR 308(2) (see Fashion
Page v Zurich Ins. Co., 50 NY2d 265, 271-272; Aguilera v Pistilli
Constr. & Dev. Corp., 63 AD3d 765; Eastman Kodak Co. v
Miller & Miller Consulting Actuaries, 195 AD2d 591).

Since the defendant offered no other excuse for its default, the
Supreme Court improvidently exercised its discretion in vacating the
default (see Pezolano v Incorporated City of Glen Cove, 71 AD3d
970; Sime v Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc.
v L & L N.Y. Food Corp., 18 AD3d at 851). Accordingly, the
Supreme Court should have denied the defendant's cross motion and
granted the plaintiff's motion for leave to enter a default judgment.

This case inspired me to add a new tag, "It's kind of a big deal."

Substitution of Experts: CPLR § 3101(d)

CPLR § 3101(d) Trial Preparation

Maddaloni Jewelers, Inc. v Rolex Watch U.S.A., Inc., 2010 NY Slip Op 04454 (App. Div., 1st, 2010)

The motion court exercised its discretion in a provident manner in
denying defendant's motion for preclusion. Although defendant may have
incurred expenses in preparing a rebuttal to plaintiff's initial
expert's report, there was no indication that plaintiff's substitution
of its expert was willful or prejudicial to defendant (see Gallo v
Linkow, 255 AD2d 113, 117 [1998]). The record demonstrates that the
case had been already been delayed due to defense counsel's surgery and
was again delayed because of a change of Justices assigned to the case.
Plaintiff's service of its substitution of experts was neither done on
the eve of trial nor at the last-minute, as no trial date was set at the
time the substituted expert was hired (see e.g. Mateo v 83 Post Ave. Assoc., 12 AD3d 205,
205-206 [2004]). Furthermore, even assuming that plaintiff was required
to show "good cause" (CPLR 3101[d][1][i]), its proffered reason for the
substitution of experts, namely, the breakdown in its relationship with
its former expert, sufficiently established such "good cause" (compare Lissak v Cerabona, 10 AD3d 308,
309-310 [2004]).

The motion court providently exercised its discretion in refusing
to award legal fees and costs attributable to the substitution of the
expert. "An award of attorneys' fees as a direct remedy must be based on
contract or statute" or where there is established wrongdoing (City
of New York v Zuckerman, et al., 234 AD2d 160 [1st Dept 1996], app
dismissed 90 NY2d 845 [1997]). While a party may be ordered to bear
the cost of his or her adversary's rebuttal expert where a party fails
to disclose the substance of the expert's testimony in accordance with
CPLR 3101 and where the matter is on for trial (see St. Hilaire v
White, 305 AD2d 209 [2003]), here, plaintiff's notice of
substitution of its expert was offered months before the action was
scheduled [*2]for trial, and there is no
showing that plaintiff acted improperly in attempting to substitute
experts.

The bold is mine.

I’ll bet this happens a lot. CPLR 5015

CPLR R. 5015

CPLR
§ 105 Definitions
(u) Verified
pleading. A “verified pleading” may be utilized as an affidavit
whenever the latter is required.

Ramos v Jake Realty Co., 2010 NY Slip Op 50934(U (App. Term, 1st, 2010)

While plaintiff's excuse for his failure to appear for trial was hardly
overwhelming, under the particular circumstances here presented and in
light of the policy favoring the resolution of actions on their merits,
it was sufficient to warrant affording plaintiff vacatur relief.
Plaintiff's attorney, while on vacation abroad, received a message from
defense counsel requesting an adjournment of the trial date due to the
unavailability of a defense witness. Plaintiff's attorney orally
consented to the adjournment and, believing that defense counsel would
obtain the adjournment, did not appear for trial. Notably, a letter from
defense counsel to the court, which defense counsel shared with
plaintiff's counsel, corroborates plaintiff's counsel's belief that
defense counsel would seek the adjournment. Although the better practice
would have been for plaintiff's counsel to appear for trial to confirm
that the matter would be adjourned (and be prepared to go forward if the
request for the adjournment was denied), we conclude that plaintiff's
default was attributable to excusable law office failure (see
generally Delagatta v McGillicuddy,31 AD3d 549 [2006]; Cannon v
Ireland's Own, 21 AD3d 264 [2005]). Plaintiff also established a
potentially meritorious claim against defendants through his verified
pleadings (see Gironda v Katzen, 19 AD3d 644 [2005]; Key Bank,
N.A. v NY Cent. Mut. Fire Ins. Co., 144 AD2d 847 [1988]). We note
too that the Appellate Division, First Department previously concluded
that numerous triable issues exist in this action precluding summary
judgment in defendants' favor (Ramos v Jake Realty Co., 21 AD3d
744 [2005]).

Notice the meritorious defense through the verified pleadings bit.  See, CPLR
§ 105.

Would the the excuse have flown in the Second Department?  Probably not.  A.B.
Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 25 Misc 3d 137(A) (App. Term, 2nd, 2009) ("Plaintiffs'
allegation of law office failure is factually insufficient (see
Robinson v New York City Tr.
Auth., 203 AD2d 351 [1994]), in that they failed to explain whether
the normal two-part
procedure for assigning a per diem attorney to cover a court appearance,
as outlined in their
submission to the court, was followed in its entirety.").

Renewal proper to correct “procedural oversight” CPLR R. 2221

CPLR R. 2221
(e)
Motion for Leave to Renew

Zhijian Yang v Alston, 2010 NY Slip Op 04236 (App. Div., 1st, 2010)

The burden then shifted to plaintiff. Initially, we find that in the
absence of any prejudice to defendants, renewal was properly granted to
plaintiff to correct a procedural oversight on the previous motion and
allow the submission of her examining physician's report in admissible
form (see Cespedes v McNamee, 308 AD2d 409 [2003]). However, upon
renewal, Supreme Court should have adhered to its original
determination granting defendants' motion for summary judgment because
plaintiff failed to raise a triable issue of material fact as to whether
she sustained a serious injury in this accident.

Strange.  Generally, a motion to renew requires an explanation for failing to provide the evidence in the first place.  The Court cites to Cespedes:

The IAS court originally granted defendants' motion for summary judgment because the physician's report that plaintiff submitted in opposition was neither sworn nor affirmed pursuant to CPLR 2106. Immediately after learning of the court's decision, plaintiff moved to renew and reargue, submitting his doctor's findings in affidavit form, and explaining, through his attorney and doctor, that neither realized the report was unsworn until after receiving the IAS court's order. The IAS court properly granted plaintiff's motion, which, contrary to its designation, was one to renew, not reargue, since it was based on newly submitted evidence (see Telep v Republic El. Corp., 267 AD2d 57 [1999]). Renewal may be granted where the failure to submit a doctor's report in affidavit form “'was inadvertent, and … absen[t] … any showing by defendants of prejudice attributable to the short delay caused by such failure”' (Ramos v Dekhtyar, 301 AD2d 428, 429 [2003]; see also Segall v Heyer, 161 AD2d 471 [1990]). Defendants show no prejudice. On the merits, an issue of fact as to whether plaintiff sustained a serious injury is raised by his doctor's affidavit correlating significant quantified range of motion limitations in plaintiff's lower back, among other conditions, including lumbar muscle spasms, to a herniated disc revealed in an MRI taken shortly after the accident, and opining that the disability to plaintiff's back is permanent (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 352-353 [2002]; Gonzalez v Vasquez, 301 AD2d 438 [2003]; Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]).

CPLR R. 3212; 4518 Gaps in proof not enough. Records not admissible. Plus CPLR 3116(a): Deposition not signed

CPLR R. 3212 Motion for summary judgment

CPLR R. 4518 Business records

CPLR R. 3116 Signing deposition; physical preparation; copies

(a) Signing.

Shafi v Motta, 2010 NY Slip Op 03895 (App. Div., 2nd, 2010)

On their motion for summary judgment, the defendants had the burden of
establishing, by proof in admissible form, their prima facie entitlement
to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v
City of New York, 49 NY2d 557, 561; Myers v Ferrara, 56 AD3d
78, 83). This burden may be satisfied only by the defendant's
affirmative demonstration of the merit of the defense, rather than
merely by reliance on gaps in the plaintiffs' case (see DeFalco v
BJ's Wholesale Club, Inc., 38 AD3d 824, 825; Cox v Huntington
Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd.
Liab. Co., 27 AD3d 539; Mondello v DiStefano, 16 AD3d 637,
638). Here, the defendants submitted [*2]hospital
laboratory reports and records of the New York City Department of
Health and Mental Hygiene. As the Supreme Court concluded, however,
because these documents were neither certified nor authenticated, and
thus were not in admissible form, they could not be considered on the
motion (see CPLR 4518[c]; Banfield v New York City Tr. Auth.,
36 AD3d 732; Baez v Sugrue, 300 AD2d 519, 520; cf. Whitfield v
City of New York, 48 AD3d 798, 799). Moreover, the affirmation of
the defendants' attorney submitted with very brief excerpts of
deposition testimony was insufficient to establish the defendants'
entitlement to judgment as a matter of law (see Irving v Great Atl.
& Pac. Tea Co., 269 AD2d 358, 359; Cicolello v Limb, 216
AD2d 434). Inasmuch as the defendants failed to carry their burden,
denial of the motion was required without regard to the sufficiency of
the papers submitted in opposition (see Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853; Molina v Belasquez, 1 AD3d 489).

Marmer
v IF USA Express, Inc., 2010 NY Slip Op 04151 (App. Div., 2nd, 2010)

The defendants did not meet their prima facie burden of showing that the
plaintiff did not sustain a serious injury as a result of the subject
accident. Specifically, the defendants failed to show that the plaintiff
did not sustain a medically-determined injury or impairment of a
nonpermanent nature which prevented her from performing substantially
all of the material acts which constituted her usual and customary daily
activities for a period of not less than 90 days during the 180-day
period immediately following the subject motor vehicle accident, as
articulated in Insurance Law § 5102(d) (hereinafter the 90/180-day
category) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy
v Eyler, 79 NY2d 955, 956-957). In the plaintiff's bill of
particulars, she clearly set forth that, as a result of the subject
motor vehicle accident, she sustained, inter alia, a serious injury
under the 90/180-day category of Insurance Law § 5102(d). The affirmed
reports of the defendants' examining physicians did not specifically
relate any of their findings to this 90/180-day category of serious
injury (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65
AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58
AD3d 815; Scinto v Hoyte, 57 AD3d 646). Further, the unsigned
deposition transcript of the plaintiff, which the defendants submitted
in support of their motion, did not constitute admissible evidence in
light of the defendants' failure to demonstrate that the transcript was
forwarded to the plaintiff for her review pursuant to CPLR 3116(a) (see
Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald
v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos
v Intown Assoc., 17 AD3d 564). Since the defendants [*2]failed to meet their prima facie burden, we
need not consider whether the plaintiff's opposition papers were
sufficient to raise a triable issue of fact (see Negassi v Royle, 65
AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk,
60 AD3d 650; Miller v Bah, 58 AD3d 815).

The bold is mine.

CPLR 3101(a)(4) Non-Party disclosure. App. Div., 2nd. Non-party subpoena quashed.

On May 7th I posted a case where the Appellate Division, Second Department found that a parties non-party subpoenas were proper.  Today, in an unusually long decision, the same court came to a different conclusion.  It's a long decision.  Read it anyway.

Kooper v Kooper, 2010 NY Slip Op 04147 (App. Div., 2nd, 2010)

On this appeal we consider principles governing the discovery of
documents from nonparties pursuant to CPLR 3101(a)(4), which provides
that the party seeking disclosure must give notice stating "the
circumstances or reasons such disclosure is sought or required" from the
nonparty. Specifically, the question arises whether a party must
establish the existence of "special circumstances" warranting discovery
from a nonparty in order to successfully oppose a motion to quash a
subpoena duces tecum served on that nonparty. Many of our cases
continued to apply that standard after CPLR 3101(a)(4) was amended to
remove the requirement that discovery from a nonparty be obtained only
"where the court on motion determines that there are adequate special
circumstances." We hereby disapprove the further application of the
"special circumstances" standard in this context. We, nevertheless, look
behind that language in our cases and find underlying considerations
which are appropriate and relevant to the trial court's exercise of its
discretion in determining whether a request for discovery from a
nonparty should go forward or be quashed. Here, the Supreme Court
providently exercised its discretion in granting the plaintiff's motion
to quash the subpoenas at issue.

The bold is mine.

Confession of Judgment CPLR § 3218(a)(2)

CPLR § 3218 Judgment by
confession
(a) Affidavit of defendant
(2) if the judgment to be confessed is for money due or to become due, stating concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due

Cole-Hatchard v Nicholson, 2010 NY Slip Op 04131 (App. Div., 2nd, 2010)

Contrary to the plaintiffs' contention, the Receiver had standing to
seek vacatur of the judgment by confession on the ground that the
affidavit of confession of judgment does not [*2]comply
with CPLR 3218(a)(2) (see County Nat'l Bank v Vogt, 28 AD2d 793,
794, affd 21 NY2d 800; In re Horowitz, 98 NYS2d 881, 882,
affd 277 App Div 1130; 7-3218 New York Civil Practice: CPLR P
3218.00; see generally Eberhard v Marcu, 530 F3d 122, 133; Scholes
v Lehmann, 56 F3d 750, 755, cert denied sub nom. African
Enterprise, Inc. v Scholes, 516 US 1028; SEC v Shiv, 379 F
Supp 2d 609; cf. Burtner v Burtner, 144 AD2d 417, 418; Magalhaes
v Magalhaes, 254 App Div 880, 881), and the Receiver was not
required to commence a plenary action to the extent he sought to vacate
the judgment by confession on that ground (see County Natl. Bank v
Vogt, 28 AD2d 793, affd 21 NY2d 800; Mall Commercial Corp.
v Chrisa Rest., 85 Misc 2d 613, 614; cf. Engster v Passonno, 202
AD2d 769, 769; Affenita v Long Indus., 133 AD2d 727, 728; Bufkor,
Inc. v Wasson & Fried, 33 AD2d 636, 637).

Also contrary to the plaintiffs' contention, the affidavit of
confession of judgment, which failed, inter alia, to set forth any facts
explaining why Nicholson was indebted to the plaintiffs with respect to
the money they invested with him, or why such debt was justly due, does
not comply with CPLR 3218(a)(2) (see Franco v Zeltser, 111 AD2d
367, 368; County Nat'l Bank v Vogt, 28 AD2d at 793; Wood v
Mitchell, 117 NY 439, 441; cf. Harrison v Gibbons, 71 NY 58,
60; Perkins Davis Group, Inc. v Chelsea 82973, LLC, 24
AD3d 645, 645; Eurofactors Intl., Inc. v Jacobowitz, 21 AD3d 443,
445; ILMS Realty Assn. v Madden, 174 AD2d 603, 603; Princeton
Bank & Trust Co. v Berley, 57 AD2d 348, 352-354). In that
regard, given that the affidavit of confession of judgment does not
simply contain some minor error of fact, but rather, is wholly
insufficient under CPLR 3218(a)(2), the Supreme Court providently
exercised its discretion in declining to amend the judgment by
confession as an alternative to granting the Receiver's motion to vacate
it (see Baehre v Rochester Dental Prosthetics, 112 Misc 2d 270,
276; cf. Princeton Bank & Trust Co. v Berley, 57 AD2d at
354).

The bold is mine.