Category: CPLR

CPLR § 3101(d) Experts and Weight

CPLR § 3101(d)

Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC, 2009 NY Slip Op 04950 (App. Div., 1st, 2009)

While the "qualification of an expert witness is within the court's
sound discretion, and its determination will not be disturbed in the
absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Issacs v Incentive Sys.,
52 AD2d 550 [1976]). Licensed professionals acting as experts have been
found qualified to give their opinions regarding future or estimated
costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with
estimating costs. The computer database utilized by plaintiff's expert
to prepare pre-bid cost estimates was based on the same methodology
employed in connection with the completed remediation work —
specifications and bids of hundreds of prior projects on which the
expert had worked. Furthermore, "any alleged lack of knowledge in a
particular area of expertise goes to the weight and not the
admissibility of the testimony," and could have been cured with a
limiting instruction to the jury (see Moon Ok Kwon v Martin, 19 AD3d 664 [2005]).

K & J/Gonzalez's argument that it is entitled to set off
against the $2,059,692.09 jury verdict the $1,960,000 received from the
settling codefendants is unsupported by the record (see e.g. Promenade v Schindler El. Corp., 39 AD3d 221, 222-223 [2007], lv dismissed
9 NY3d 839 [2007]). Based on the explicit language of the second
amended complaint, the verdict sheet and the settling agreements, there
is no basis for concluding that the jury allocated damages to these
defendants based on the same claims or injuries by which plaintiff had
entered into its agreements with the settling codefendants. Plaintiff's
Amended CPLR 3101(d) Expert Disclosure clearly indicated that this
expert's testimony would address construction defects caused by K &
J and the "costs to remedy" those defects.

The bold is mine.

CPLR § 203(d)

CPLR § 203 Method of computing periods of limitation generally

(d) Defense or counterclaim

Carlson v Zimmerman, 2009 NY Slip Op 04849 (App. Div., 2nd, 2009)

The Supreme Court erred, however, in granting that branch of the
plaintiffs' motion which was to dismiss the defendants' counterclaims
as time-barred insofar as the counterclaims pertained to erosion of the
defendants' properties caused by the plaintiffs' activities. Under CPLR
203(d), "claims and defenses that arise out of the same transaction as
a claim asserted in the complaint are not barred by the Statute of
Limitations, even though an independent action by defendant might have
been time-barred at the time the action was commenced" (Bloomfield v Bloomfield, 97
NY2d 188, 193). "The provisions of CPLR 203(d) allow a defendant to
assert an otherwise untimely claim which arose out of the same
transactions alleged in the complaint, but only as a shield for
recoupment purposes, and does not permit the defendant to obtain
affirmative relief" (DeMille v DeMille, 5 AD3d 428, 429; see Delta Funding Corp. v Murdaugh, 6 AD3d 571, 571-572; Rothschild v Industrial Test Equip. Co., 203
AD2d 271, 272). Here, there is evidence that some of the defendants'
trespassing activities were undertaken in an attempt to correct damage
that the plaintiffs admitted to having caused by excavating too deeply
into their land abutting properties belonging to the defendants, and
failing to leave a sufficient buffer area along the border. It is
undisputed that these activities caused erosion on the affected
properties, allegations concerning which form the basis of portions of
the defendants' counterclaims. Accordingly, the Supreme Court should
have denied that branch of the plaintiffs' motion which was to dismiss
the counterclaims as time-barred to the extent that the damages sought
in the counterclaims are for the erosion caused by the plaintiffs'
excavating activities, and/or to reimburse the defendants' costs in
attempting to correct the resulting damage. These damages should be
applied to offset any damages award in favor of the plaintiffs and
against the defendants (cf. Delta Funding Corp. v Murdaugh, 6 AD3d at 571-572; DeMille v DeMille, 5 AD3d at 429).

The bold is mine.

CPLR § 3215 Default judgment

(f) Proof

CPLR R 306 Proof of service

(a) Generally

Jian Zheng v Evans, 2009 NY Slip Op 04863 (App. Div., 2nd, 2009)

In opposition, the plaintiffs failed to raise a triable issue of
fact. The plaintiffs produced only an attorney's affirmation offering
speculation, unsupported by any evidence, that the defendants acted in
bad faith and failed to abide by the terms of the contract of sale (see Cordova v Vinueza,
20 AD3d 445). Moreover, the plaintiffs' contention that the granting of
summary judgment was premature is without merit. The plaintiffs failed
to "show more than a mere hope that [they] might be able to uncover
some evidence during the discovery process," nor did they show that
their "ignorance was unavoidable and that reasonable attempts were made
to discover the facts which would give rise to a triable issue of fact"
(Companion Life Ins. Co. of N.Y. v All State Abstract Corp., 35 AD3d 519, 521).
[*2]

The Supreme Court also properly
granted that branch of the defendants' motion which was for leave to
enter a default judgment on their counterclaim for the return of their
down payment upon the plaintiffs' failure to serve a reply to the
counterclaim. The defendants submitted proof of service of their
verified answer and counterclaim, proof of the facts constituting the
counterclaim, and an affirmation from their attorney regarding the
plaintiffs' default in serving a reply (see CPLR 3215[f]). In
opposition, the plaintiffs failed to demonstrate that they served a
reply on the defendants. Although they annexed a reply to their
attorney's affirmation, it was not signed and they did not provide
sufficient evidence of service (see CPLR 306[a], [d]; Celleri v Pabon, 299 AD2d 385, 385-86; cf. Dixon v Motor Veh Acc. Indem. Corp.,
224 AD2d 382, 383-384). Moreover, the plaintiffs did not provide a
reasonable excuse for their failure to timely serve a reply, and a
potentially meritorious defense (see ACME ANC Corp. v Read, 55 AD3d 854, 855; Twersky v Kasaks, 24 AD3d 657, 658; cf. MMG Design, Inc. v Melnick, 35 AD3d 823).

The bold is mine.

CPLR § 5205(c)(2)&(5)

CPLR § 5205 Personal property exempt from application to the satisfaction of money judgments

(c)
Trust exemption

Memmo v Perez, 2009 NY Slip Op 04710 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Saralee Evans, J.), entered
February 20, 2009, which, in an action for divorce, inter alia,
directed plaintiff to satisfy the charging lien of his former attorneys
(MSAR) "from the retirement accounts retained by or transferred to
Plaintiff" pursuant to the settlement in the divorce action,
unanimously modified, on the law, to delete the words "retained by or,"
and otherwise affirmed, without costs. Appeal from paper, denominated
decision and order, which granted MSAR's motion seeking, inter alia,
the above relief and directed settlement of an order, unanimously
dismissed, without costs.

MSAR's charging lien came about not by virtue of Judiciary Law § 475, but rather a stipulation, so ordered by the court, in which plaintiff agreed that MSAR "shall have a charging lien
against plaintiff and plaintiff's share of equitable distribution, if
any, in the amount of $70,000." Accordingly, plaintiff will not be
heard to argue that because MSAR's efforts did not create a "new fund"
greater than the value of interests already held by plaintiff, MSAR
does not have a valid charging lien (see Miller v Kassatly, 216 AS2d 260 [1995]; Resnick v Resnick, 24 AD3d 238
[2005]). Nor is the stipulation rendered unenforceable by CPLR
5205(c)(2), exempting personal retirement accounts from application to
the satisfaction of money judgments. First, the transfer of assets from
defendant's IRA account to plaintiff's IRA account pursuant to the
settlement in the divorce action admittedly took place within 90 days
of plaintiff's stipulation to MSAR's lien (CPLR 5205[c][5][i]). Second,
because the matrimonial settlement agreement left plaintiff with no
immediate liquid assets to which MSAR's lien could attach, the court
providently exercised its discretion to look behind that settlement to
determine if plaintiff had used all liquid assets to which he had a
claim to defray obligations other than the lien (see Haser v Haser,
271 AD2d 253 [2000]). However, the directive that payment be made of
out of funds "retained by" plaintiff in retirement accounts is
incorrect, since any funds originally held by plaintiff in his name
would be [*2]exempt from judgment under CPLR 5205(c)(2). In accordance with CPLR 5205(c)(5)(i), only the funds
transferred into plaintiff's IRA account from defendant's IRA account
may be used to satisfy MSAR's lien.

The bold is mine

CPLR § 311(a)(1); CPLR R. 5015(a)(1)(4)

CPLR § 311 Personal service upon a corporation or governmental subdivision

(a)(1)

CPLR R. 5015 Relief from judgment or order

(a) On motion

CPLR R. 5015(a)(4) lack of jurisdiction to render the judgment or order

CPLR R. 5015(a)(1) excusable default

Aguilera v Pistilli Constr. & Dev. Corp., 2009 NY Slip Op 04844 (App. Div., 2nd, 2009)

The affidavit of the plaintiff's process server showed that on July
25, 2005, Pistilli was served with a summons and complaint by delivery
to its general agent at its office located in Astoria. Since no answer
was served by Pistilli, the plaintiff sought and obtained leave to
enter a default judgment against it.

Pistilli sought to vacate the default pursuant to, inter alia,
CPLR 5015(a)(4), claiming that service of process was improper under
CPLR 311(a)(1), and/or pursuant to CPLR 5015(a)(1) on the ground that
its default was excusable. By order dated October 2, 2007, the Supreme
Court, inter alia, directed a hearing to determine whether service of
process was effected. Contrary to Pistilli's position, the Supreme
Court properly ordered the hearing (see CLE Assoc., Inc. v Greene, 43 AD3d 382, 384; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135, 139).

Pursuant to CPLR 311(a)(1), service upon a corporation shall be
made by delivering the summons to an officer, director, managing agent,
general agent, cashier, or assistant cashier, or to any other agent
authorized by appointment or by law to receive service. In addition,
service may be made upon someone whom the corporation cloaks with
authority (see Fashion Page v Zurich Ins. Co., 50 NY2d 265; Rokicki v 24 Hour Courier Serv., 282 AD2d 664, 665; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d 591; Seda v Armory Estates, 138 AD2d 362, 363-364).

The Supreme Court correctly determined that it acquired
jurisdiction over Pistilli through proper service of process. The
evidence adduced at the hearing established that Angela Rodriguez, to
whom the summons and complaint was delivered, was seated behind the
cashier/reception desk when the process server entered Pistilli's
office, that the process server, who had served Pistilli in the same
office and the same manner on at least three prior occasions, read the
summons and complaint out loud to Rodriguez, and that Rodriguez
informed the process server that she could accept service on behalf of
Pistilli. While Rodriguez claimed that she was not employed by
Pistilli, the record demonstrates that the company by which she was
employed shared offices with Pistilli and was owned by the same
principals. She also testified that service of process was regularly
made by delivering documents to the reception desk for the various
entities that operated out of the same office. Under these
circumstances, "the plaintiff's process server acted reasonably and
with due diligence" and it was reasonable for the process server to
believe that Rodriguez was authorized to accept service on behalf of
Pistilli (Rokicki v 24 Hour Courier Serv., 282 AD2d at 664; see Fashion Page v Zurich Ins. Co., 50 NY2d 265; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at 591; Seda v Armory Estates, 138
AD2d at 363-364). Furthermore, we decline to disturb any credibility
determination made by the hearing court, as its determination is amply
supported by the record (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538).

The Supreme Court also properly denied that branch of Pistilli's
renewed motion which was to vacate the default pursuant to CPLR
5015(a)(1). "A party seeking to vacate a default pursuant to CPLR 5015
(a)(1) must demonstrate a reasonable excuse for its delay in appearing
and answering the complaint and a meritorious defense to the action'" (New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442, quoting Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; see CPLR 5015[a][1]; Koyenov v Twin-D Transp., Inc., 33 AD3d 967).
"The decision as to the setting aside of a default in answering is
generally left to the sound discretion of the Supreme Court, the
exercise of which will generally not be disturbed if there is support
in the record therefor" (Mjahdi v Maguire, 21 AD3d 1067, 1068, quoting MacMarty, Inc. v Scheller, 201 AD2d 706, 707).

Pistilli failed to offer a reasonable excuse for its failure to answer or appear in this action (see Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at 592). Contrary [*3]to
Pistilli's position, its default was not attributable to its insurance
carrier's assertion that it would represent it in this matter, as it
was served with the summons and complaint approximately five months
prior to any communication that it received from its insurance carrier
regarding representation (cf. Perez v Linshar Realty Corp., 259
AD2d 532, 533). In view of the lack of a reasonable excuse, it is
unnecessary to consider whether Pistilli sufficiently demonstrated the
existence of a meritorious defense (see Mjahdi v Maguire, 21 AD3d at 1068; Krieger v Cohan, 18 AD3d 823).

The bold is mine.


CPLR R. 5015(a)(2)

CPLR R. 5015 Relief from judgment or order

(a) On motion.
The court which rendered a judgment or order may relieve a party from
it upon such terms as may be just, on motion of any interested person
with such notice as the court may direct, upon the ground of:

2.
newly-discovered evidence which, if introduced at the trial, would
probably have produced a different result and which could not have been
discovered in time to move for a new trial under section 4404

Woori Am. Bank v Winopa Intl. Ltd., 2009 NY Slip Op 04734 (App. Div., 1st, 2009)

Defendants were properly denied relief under CPLR 5015 (a)(2) since
they did not show that their new evidence refuted the essential
findings underlying the order and would probably have resulted in a
different outcome (see Bongiasca v Bongiasca, 289 AD2d 121, 122 [2001]). The evidence submitted did not establish that the statements in question were fabricated (cf. McCarthy v Port of N.Y. Auth.,
21 AD2d 125, 127 [1964]). In any event, Justice Heitler's determination
did not rest solely on those statements, but also on defendants'
initial failure to deny their indebtedness and their inability to offer
any other evidence that they had made the payments as they claimed.

The bold is mine.

Laches; CPLR § 3013

CPLR § 3013 Particularity of statements generally

Commissioners of the State Ins. Fund v Ramos, 2009 NY Slip Op 04361 (App. Div. 1st, 2009)

Insofar as pertinent, defendants' answer contains an affirmative
defense alleging, in its entirety, that "[p]laintiff's claims are
barred by the equitable doctrine of laches." In opposition to
plaintiff's motion to dismiss this defense, defendants' attorney
submitted an affirmation arguing that the alleged laches is
"self-explanatory" in that this action seeks to collect a 2004 judgment
entered in a 1997 action against the judgment debtor to recover unpaid
1992/1993 workers' compensation premiums. The motion court, in the
first order on appeal, correctly dismissed the defense as pleading only
a bare legal conclusion without supporting facts (CPLR 3013; see Robbins v Growney,
229 AD2d 356, 357-358 [1996]). Concerning the second order on appeal,
defendants have appealed only from that portion of the order as denied
that branch of their motion as sought to reargue or renew plaintiff's
motion to dismiss the laches defense. Thus, whether the motion court
properly denied the branch of the motion as sought leave to amend the
answer to assert the facts supporting the defense of laches is not
properly before this Court (see City of Mount Vernon v Mount Vernon Hous. Auth.,
235 AD2d 516, 517 [1997]). In any event, for the reasons stated, the
defense of laches is unavailable. We would add that the affirmation of [*2]defendants'
attorney submitted in support of the motion to amend the answer lacks
probative value with respect to the prejudice allegedly caused
defendants by plaintiff's delay of prosecution against the judgment
debtor (see Zuckerman v City of New York, 49 NY2d 557, 562-563 [1980]).

The bold is mine.

CPLR § 3101(a)

CPLR § 3101 Scope of disclosure

Rivera v NYP Holdings Inc., 2009 NY Slip Op 04706 (App. Div., 1st, 2009)

We conclude that the denial of defendants' motion to compel constituted
an improvident exercise of discretion. Full disclosure is required of
"all matter material and necessary" to the defense of an action (CPLR
3101[a]), and the words "material and necessary" are "to be interpreted
liberally to require disclosure . . . of any facts bearing on the
controversy" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403,
406 [1968]). Defendants are entitled to the discovery they seek in
their efforts both to establish their defense of truth to plaintiff's
defamation claims (see Wright v Snow, 175 AD2d 451 [1991], lv dismissed 79 NY2d 822 [1991]), and to defend against plaintiff's assertion of damage to his reputation (cf. Burdick v Shearson Am. Express, 160 AD2d 642 [1990], lv denied 76 NY2d 706 [1990]). Moreover, defendants are entitled to the opportunity to demonstrate the truth of the articles as a wholesee Miller v Journal News,
211 AD2d 626, 627 [1995]), warranting disclosure even as to assertions
in those articles that are not directly challenged in plaintiff's
complaint. Therefore, the inquiries related to grand jury testimony by
plaintiff, information sought from or provided by plaintiff to the
Commission on [*2]Judicial Conduct, and
plaintiff's arrest record, if any, seek information sufficiently
material and relevant to the defense of the action to warrant
disclosure. (

Laguna v Mario's Express Serv., Inc., 2009 NY Slip Op 04869 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff
appeals, as limited by her brief, from so much of an order of the
Supreme Court, Kings County (Bayne, J.), dated November 21, 2007, as
granted the defendants' motion for renewal and reargument of their
prior oral application for access to the plaintiff's medical records
"beyond a 3 year period," which was denied by order of the same court
(Ambrosio, J.) dated June 28, 2007, and upon renewal and reargument
granted the defendants access to "the complete medical records relating
the plaintiffs' initial diagnosis & follow up treatment to present
for cerebral palsy."

ORDERED that the order dated November 21, 2007, is reversed
insofar as appealed from, on the facts and in the exercise of
discretion, with costs, and the motion is denied.

The evidence submitted by the defendants upon their motion for
renewal and reargument was insufficient to justify a new determination.
The defendants failed to establish that the additional disclosure was
material and necessary to the defense of the action (see Cynthia B. v New Rochelle Hosp. Med Ctr, 60 NY2d 452, 465, 457; Chevrin v Macura, 28 AD3d 600; DeStrange v Lind, 277
AD2d 344), nor did they demonstrate that "access to earlier medical
records would result in the discovery of admissible or relevant
evidence" (DeStrange v Lind, 277 AD2d at 345).

The bold is mine.

CPLR § 1601(1)

CPLR § 1601 Limited liability of persons jointly liable

Cunha v City of New York, 2009 NY Slip Op 04698 (Ct. App., 2009)

Haks also raises the issue of the potential liability of other parties and relies on our recent decision in Frank v Meadowlakes Dev. Corp. (6 NY3d 687 [2006]) for the proposition that the City is entitled to only partial indemnification from Haks. In Frank,
we held that CPLR article 16 limited the amount that can be recovered
in indemnity when a tortfeasor's liability is 50% or less. In that
case, the injured plaintiff sued the owner of the job-site,
Meadowlakes, and the general contractor, DJH Enterprises, Inc. ("DJH").
Meadowlakes thereafter brought a third-party action for indemnification
against plaintiff's employer, Home Insulations and Supply, Inc.
("Home"). Since the claim arose before the 1996 amendment to Workers
Compensation Law sec. 11, Home was not immune from third-party
liability. After a trial, the jury apportioned fault in the amount of
10% to plaintiff, 10% to Home and 80% to DJH. The court also directed a
verdict against Meadowlakes and DJH based upon a violation of Labor Law
§ 240 (1). Plaintiff settled with Meadowlakes for $1.4 million and with
DJH for $300,000.

Meadowlakes moved for common-law indemnification against Home
for 100% of its settlement liability. Home appealed arguing, as
relevant to this appeal, that because it was found only 10% at fault,
it should be liable to Meadowlakes for only its proportionate share of
negligence. We agreed, finding that Meadowlakes was not entitled to
100% recovery. In doing so, we held that the savings provision of CPLR
1602 (2) (iv) applied and that recovery from Home, as a party found 10%
liable, was limited to its proportionate share with respect to
noneconomic damages.

This case differs from Frank, however, in that no
Article 16 issue exists inasmuch as no other tortfeasor could be found
liable for plaintiff's injuries. Haks argues that the jury must have
found another entity liable as they apportioned only 40% fault to Haks.
This argument is flawed.

A likely interpretation of the jury's verdict is that the jury
allocated culpability to plaintiff's employer, JLJ – but JLJ's fault
was irrelevant and should not have been before the jury. Plaintiff did
not sustain a grave injury and thus, his employer was not subject to
being part of the action (see Workers Compensation Law sec. 11;
CPLR 1601 [1]). To the extent the jury may have considered plaintiff
himself at fault, his negligence must be excluded because he, like JLJ,
cannot be an indemnitor (see Frank, 6 NY3d at 693). It is
unlikely that the jury allocated active fault to the City; to the
extent the verdict is unclear on that issue, the burden was on Haks to
clarify it, by proposing an appropriate question to the jury.

Moreover, no apportionment for any other third-party was
requested by Haks at any time during the proceedings. No evidence was
submitted at trial that any other entity was negligent, nor could have
any other entity been found negligent based upon the instructions
provided to the jury, the verdict sheet, or the charge provided to the
jury. Consequently, once Haks was found to be negligent—and since Haks
was the only possible negligent party to the lawsuit—the City was
entitled to 100% indemnification from Haks.

The bold is mine.