Category: CPLR

No CPLR § 3101(d) notice required for plaintiff’s treating physician

CPLR § 3101(d) Trial Preparation (2) Materials

Soriano v Inoa, 2010 NY Slip Op 03843 (App. Div., 1st, 2010)

It is unclear from the trial record whether Dr. Gutstein was an expert
witness as to whom CPLR 3101(d) notice was required, or plaintiff's
treating physician, as to whom no notice was required (see e.g. Breen
v Laric Entertainment Corp., 1 AD3d 298, 299-300 [2003]). Moreover,
it is clear that the prejudice to defendants arose from the lack of
proper authorizations for medical records and not from the report
annexed to plaintiff's expert notice. 

Accordingly, Gutstein's testimony as to causation should not have
been precluded on the ground of plaintiff's late service of the notice.

For more information, a lot more information, on this case, head over to Hochfelder's New York Injury Cases Blog.

Sum Certain. CPLR § 3215(a)(b)

CPLR § 3215 Default Judgment
(a) Default and Entry
(b) Procedure before court

Fidelity Natl. Tit. Ins. Co. v Valtech Research, Inc., 2010 NY Slip Op 03865 (App. Div., 2nd, 2010)

The Supreme Court erred in excusing the defendant's default in
appearing and answering, and in allowing it to serve an answer. The
defendant failed to sustain its burden of demonstrating that it had not
received the summons and complaint in time to defend itself so as to
entitle it to vacatur of its default under CPLR 317 (see Guayara v
First Rockaway Coast Corp., 35 AD3d 659; cf. Taieb v Hilton
Hotels Corp., 60 NY2d 725; Brockington v Brookfield Dev. Corp., 308
AD2d 498). The defendant also failed to establish a reasonable excuse
for that default. Thus, it was not entitled to vacatur under CPLR 5015 (see
Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taylor
v Saal, 4 AD3d 467; Dominguez v Carioscia, 1 AD3d 396; Kaplinsky
v Mazor, 307 AD2d 916).

However, because the plaintiff is not seeking to recover a "sum
certain" within the meaning of CPLR 3215(a), its claim that the Clerk
had the authority to enter the judgment in its favor is without merit (see
Congregation Chaim Barucha v Friedman, 62 AD3d 933; Ayres Mem.
Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty
of Animals, 17 AD3d 904, 905; Geer, Du Bois & Co. v Scott
& Sons Co., 25 AD2d 423, 423-424; see also Reynolds Sec. [*2]v Underwriters Bank & Trust Co., 44
NY2d 568, 572). Accordingly, the matter must be remitted to the Supreme
Court, Nassau County for an inquest and the entry thereafter of an
appropriate judgment (see CPLR 3215[b]).

CPLR 3101(a)(4) Non-Party disclosure

CPLR § 3101 Scope of disclosure

(a)
Generally.
There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by:

(4) any other person, upon notice
stating the circumstances or reasons such disclosure is sought or
required.

Kondratick v Orthodox Church in Am., 2010 NY Slip Op 03877 (App. Div., 2nd, 2010)

Although the general rule is that there shall be "full disclosure of all
matter material and necessary in the prosecution . . . of an action"
(CPLR 3101[a]; see Auerbach v Klein, 30 AD3d 451), nevertheless,
"unlimited disclosure is not permitted" (Silcox v City of New York, 233
AD2d 494). A party seeking disclosure from a nonparty witness, in
addition to demonstrating that the disclosure sought is material and
necessary, must also set forth circumstances or reasons why disclosure
is sought or required from a nonparty (see CPLR 3101[a][4]; Tenore
v Tenore, 45 AD3d 571, 571-572). Here, the Orthodox Church in
America (hereinafter the appellant) satisfied this requirement. In light
of the claims made by the plaintiff in Action No. 1, the information
sought in the subpoenas by the appellant is relevant, material, and [*2]necessary, and unavailable through other
means. Accordingly, the Supreme Court should have denied the motion to
quash the subpoenas (see Tenore v Tenore, 45 AD3d at 571-572; Thorson
v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper,
Inc., 249 AD2d 374).

Mere Irregularities. CPLR § 2001. CPLR R. 2101(f)

CPLR § 2001 Mistakes, omissions, defects & irregularities

CPLR
R. 2101 Form of papers
(f) Defects in form; waiver

Martin v Castaneda, 2010 NY Slip Op 03881 (App. Div, 2nd, 2010)

After a hearing, in an unsigned report dated February 13, 2009, a
referee made certain findings of facts and conclusions of law. By notice
of motion dated March 20, 2009, the plaintiffs moved, inter alia, to
confirm that portion of the referee's report which recommended that the
property be sold to effect partition. In support of their motion, the
plaintiffs submitted, among other things, a copy of the referee's report
and a transcript of the hearing, both of which contained the referee's
recommendations. In opposition, the defendant contended that the subject
branch of the motion should be denied because the report was unsigned
and unfiled. By order entered July 2, 2009, the Supreme Court granted
the subject branch of the plaintiffs' motion. The defendant contends
that the report was defective as it was unfiled (see CPLR
4320[b]; 22 NYCRR 202.44), and unsigned. We affirm the order insofar as
appealed from.

Although the referee did not sign his report, it was filed on
July 2, 2009, and, under the circumstances, any alleged defects were
mere irregularities and not fatal, as no substantial right of the
defendant has been or will be prejudiced (see CPLR 2001, 2101[f];
cf. Allison v Allison, 28 AD3d 406, 407, cert denied 549
US 1307; Matter of Lipsky v Koplen, 282 AD2d 462, 463; John
Hancock Mut. Life Ins. Co. v 491-499 Seventh Ave. Assoc., 169 Misc
2d 493, 498-499).

In case anyone is curious, all of the cases the court cites to at the bottom involve referees.  I thought that maybe some of them would involve "mere irregularities" in other contexts, but alas, I was wrong.

CPLR R. 2215 and R. 5015

CPLR R. 2215 Relief Demanded by other than moving party


At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:

(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule;

and
(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.

May v Hartsdale Manor Owners Corp., 2010 NY Slip Op 03882 (App. Div., 2nd, 2010)

To successfully oppose a motion for leave to enter a default judgment
based on the failure to timely serve an answer, a defendant must
demonstrate a reasonable excuse for its delay and the existence of a
meritorious defense (see Kouzios v Deny, 57 AD3d 949; Giovanelli
v Rivera, 23 AD3d 616; Mjahdi v Maguire, 21 AD3d 1067, 1068;
Thompson v Steuben Realty Corp., 18 AD3d 864, 865; Dinstber v
Fludd, 2 AD3d 670, 671). Here, the defendant CDT Real Estate
Management Corp. (hereinafter CDT) attempted to place the blame for its
default in answering upon its insurance company. However, CDT already
was in default by the time it finally forwarded the summons and
complaint to its insurance broker, and CDT failed to offer any
explanation for this delay. Accordingly, it was an improvident exercise
of discretion to excuse the default of CDT, and to extend its time to
serve an answer in the absence of a cross motion for such relief (see
CPLR 2215; Zino v Joab Taxi, Inc., 20 AD3d 521, 522; Hosten
v Oladapo, 44 AD3d 1006).

CPLR R. 3212(a) Timing: What happens where the case is stricken from the trial calendar

Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)

Defendant's cross motion for summary judgment, which was made in
response to a motion by plaintiff characterized by the motion court as
one to restore the action to the calendar, should have been denied as
untimely, as defendant failed to show good cause for making the cross
motion more than 120 days after the filing of the note of issue (CPLR
3212[a]; Brill v City of New York, 2 NY3d 648, 652
[2004]). At least where, as here, the 120-day time limit had expired
before the case was struck from the calendar, we reject defendant's
argument that the 120-day limit does not apply to cases that have been
struck from the calendar. We note Brill's express prohibition
against consideration of unexcused, untimely motions no matter how
meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37,
39-40 [2005]).

The bold is mine.

The sad state of CPLR § 2309 and other things.

CPLR § 2309 is a disaster.  The courts are wildly inconsistent in how they treat it.  Some prefer the substance over form approach and others do the opposite.  Not too long ago, the Appellate Term, First Department allowed a party to add a certificate of conformity at the appellate level.  See, Eastern
Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip
Op 50043(U) (App. Term, 1st, 2010).  A few days ago, the Appellate Division, First Department wasn't as understanding. (h/t JT).  In Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (App. Div., 1st, 2010) the defendant's motion for summary judgment was granted on default.  Plaintiff moved to vacate and attached an affidavit from a non-party witness which was sworn in the DR.  The plaintiff's motion was denied and the Appellate Division affirmed.  I think I said this once before, but it remains true, it's an exceptionally silly reason to lose a motion.  JT compares it to russian roulette, which is pretty apt.

The last time I wrote about 2309, I said that it was a dead objection, or something like that.  It appears that, in the first department at least, it is alive and well.  The objection, however, must be made in the papers, otherwise it's waived.  You'll find that most people don't know enough to object.

I'm sure you're thinking, "well, what's the rule in the First Department after Green?"  I have no idea.  I'd be interested to see what the Appellate Term does with Green.  Will it distinguish it or make 2309 a hard rule?

Other issues on my mind:

  • Why is there a split between the Second and First Department as to what is required to show a "reasonable excuse" when attempting to vacate a default?
  • Why do the courts allow a defendant to move to dismiss under CPLR R. 3211(a)(7) when the defendant is not claiming that the plaintiff failed to state a cause of action?  When affidavits and other proofs are attached, the courts change their inquiry from whether plaintiff has stated a cause of action to whether plaintiff has a cause of action (which is different from whether a plaintiff will ultimate be successful with that cause of action).  This, mind you, is different than a court converting it to a motion for summary judgment.  It just doesn't make any damn sense to me.

Court of Appeals on the “borrowing statute”–CPLR § 202

 CPLR § 202 Cause of action accruing without the state

Portfolio Recovery Assoc., LLC v King, 2010 NY Slip Op 03470 (Ct. App., 2010)

On April 1, 2005, nearly five years after the assignment and more
than six years after the account was canceled, Portfolio commenced this
action against King, now a resident of New York, asserting causes of
action for breach of contract and account stated. King asserts in his
answer, among other things, that upon application of CPLR 202—this
State's "borrowing statute"—Portfolio's claims are time-barred.
Specifically, King claims that Delaware's three-year statute of
limitations for breach of a credit contract (see 10 Del.C. §
8106) applies and, alternatively, Portfolio's claims are untimely under
this State's six-year breach of contract limitations period (see
CPLR 213[2]).

Portfolio obtained summary judgment on its complaint. Supreme
Court directed that judgment be entered in Portfolio's favor and the
Appellate Division affirmed (55 AD3d 1074). We now reverse.

The Appellate Division properly concluded that the Delaware choice of
law clause did not require the application of the Delaware three-year
statute of limitations to bar Portfolio's claims. Choice of law
provisions typically apply to only substantive issues (see Tanges v
Heidelberg N. Am., 93 NY2d 48, 53 [1999]), and statutes of
limitations are considered "procedural" because they are deemed "'as
pertaining to the remedy rather than the right'" (id. at 54-55
quoting Martin v Dierck Equip. Co., 43 NY2d 583, 588 [1978]).
There being no express intention in the agreement that Delaware's
statute of limitations was to apply to this dispute, the choice of law
provision cannot be read to encompass that limitations period. We
conclude, however, that the Appellate Division should have applied CPLR
202 to Portfolio's claims to determine whether they were timely brought (see
e.g. Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]
["there is a significant difference between a choice-of-law question,
which is a matter of common law, and (a) Statute of Limitations issue,
which is governed by the particular terms of the CPLR"]).

CPLR 202 provides, in relevant part, that "[a]n action based upon
a cause of action accruing without the state cannot be commenced after
the expiration of the time limited by the laws of either the state or
the place without the state where the cause of action accrued."
Therefore, "[w]hen a nonresident sues on a cause of action accruing
outside New York, CPLR 202 requires the cause of action to be timely
under the limitation periods of both New York and [*3]the
jurisdiction where the cause of action accrued" (Triarc, 93 NY2d
at 528). If the claimed injury is an economic one, the cause of action
typically accrues "where the plaintiff resides and sustains the economic
impact of the loss" (id. at 529).

Portfolio, as the assignee of Discover, is not entitled to stand
in a better position than that of its assignor. We must therefore first
ascertain where the cause of action accrued in favor of Discover. Here,
it is evident that the contract causes of action accrued in Delaware,
the place where Discover sustained the economic injury in 1999 when King
allegedly breached the contract. Discover is incorporated in Delaware
and is not a New York resident. Therefore, the borrowing statute applies
and the Delaware three-year statute of limitations governs.

That does not end the inquiry, however, because in determining
whether Portfolio's action would be barred in Delaware, this Court must
"borrow" Delaware's tolling statute to determine whether under Delaware
law Portfolio would have had the benefit of additional time to bring the
action (see GML, Inc. v Cinque & Cinque, P.C., 9 NY3d
949, 951 [2007]). Delaware's tolling statute—Delaware Code §
8117—provides that:

"If at the time when a cause of action accrues against
any person, such person is out of the State, the action may be
commenced, within the time limited therefor in this chapter, after such
person comes into the State in such manner that by reasonable diligence,
such person may be served with process. If, after a cause of action
shall have accrued against any person, such person departs from and
resides or remains out of the State, the time of such person's absence
until such person shall have returned into the State in the manner
provided in this section, shall not be taken as any part of the time
limited for the commencement of the action."

Section 8117
was meant to apply only in a circumstance where the defendant had a
prior connection to Delaware, meaning that the tolling provision
envisioned that there would be some point where the defendant would
return to the state or where the plaintiff could effect service on the
defendant to obtain jurisdiction (see Williams v Congregation Yetev
Lev, 2004 WL 2924490 *7 [SDNY 2004]). Indeed, Delaware's highest
court has held that the literal application of its tolling provision
"would result in the abolition of the defense of statutes of limitation
in actions involving non-residents" (Hurwich v Adams, 155 A2d
591, 593-594 [Del. 1959]).

There is no indication that King ever resided in Delaware, nor is
there any indication from the case law that Delaware intended for its
tolling provision to apply to a nonresident like King. Therefore, we
conclude that Delaware's tolling provision does not extend [*4]the three-year statute of limitations.
Moreover, contrary to Portfolio's contention, it is of no moment that
Portfolio was unable to obtain personal jurisdiction over King in
Delaware; this Court has held that it is not inconsistent to apply CPLR
202 in such a situation (see Insurance Co. of N. Am. v ABB Power
Generation, 91 NY2d 180, 187-188 [1997]).

Applying Delaware's three-year statute of limitation, the instant
action should have been commenced not later than 2002. Because the
contract claims were not brought until 2005, they are time-barred in
Delaware, where the causes of action accrued, and therefore they are
likewise time-barred in New York upon application of the borrowing
statute. This holding is consistent with one of the key policies
underlying CPLR 202, namely, to prevent forum shopping by nonresidents
attempting to take advantage of a more favorable statute of limitations
in this State (see Antone v General Motors Corp., 64 NY2d 20,
27-28 [1984]).

As a final matter, we note that only Portfolio sought summary
judgment below. Absent a cross motion for summary judgment by King, we
are not empowered to now grant that relief (see Stern v Bluestone, 12 NY3d 873, 876
[2009]; Falk v Chittenden, 11 NY3d 73, 78-79 [2008]; Merritt
Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111
[1984]).

The bold is mine.

CPLR § 2105 Certification by attorney

CPLR § 2105 Certification by attorney

HSBC Bank USA, N.A. v Valentin, 2010 NY Slip Op 03413 (App. Div., 2010)

Contrary to the Supreme Court's decision, the limited power of attorney
submitted by the plaintiff was not invalid because it was not certified
in accordance with CPLR 2105. CPLR 2105 provides, in part, that "where a
certified copy of a paper is required by law, an attorney admitted to
practice in the courts of the state may certify that it has been
compared by him with the original and found to be a true and complete
copy" (CPLR 2105). The copy of the limited power of attorney was duly
certified by the office of the County Administrator, which made further
certification by an attorney unnecessary (see CPLR 2105).

The bold is mine.

Intervention requires a timely motion CPLR § 1012; CPLR § 1013

CPLR §
1012 Intervention as of right; notice to attorney-general, city, county,
town or village where constitutionality in issue

CPLR
§
1013 Intervention by permission

T & V Constr. Corp. v Pratti, 2010 NY Slip Op 03433 (App. Div., 2nd, 2010)

Intervention under CPLR 1012 and CPLR 1013 requires a timely motion (see
CPLR 1012, 1013; Oparaji v Weston, 293 AD2d 592, 593; Rectory
Realty Assoc. v Town of Southampton, 151 AD2d 737). Here, the
motion of the proposed intervenor, U.S. Bank National Association, as
Trustee for Asset Backed Pass Through Certificates, Series 200-HE1
(hereinafter U.S. Bank), was untimely (see Oparaji v Weston, 293
AD2d at 593; Vacco v Herrera, 247 AD2d 608). U.S. Bank moved,
inter alia, pursuant to CPLR 1012 to intervene as of right in this
foreclosure action or, in the alternative, pursuant to CPLR 1013 for
leave to intervene in the action for the purpose of asserting a defense
based on the doctrine of equitable subrogation. The motion was made
approximately two years after the plaintiff filed its notice of
pendency, and approximately eight months after a judgment of foreclosure
and sale was entered in this action. The subject premises had already
been sold pursuant to the judgment of foreclosure and sale prior to U.S.
Bank's motion. The plaintiff would be prejudiced if it were required to
relitigate this foreclosure action, which has already been prosecuted
and completed (see Chesney v Chesney, 260 AD2d 340, 341; Rectory
Realty Assoc. v Town of Southampton, 151 AD2d at 738). Under these
circumstances, U.S. Bank was not entitled to intervene in the action (see
Carnrike v Youngs, 70 AD3d 1146, 1147; Oparaji v Weston, 293
AD2d at 593; Vacco v Herrera, 247 AD2d 608; Rectory Realty
Assoc. v Town of Southampton, 151 AD2d at 737-738).

The bold is mine.