Category: CPLR

Evidence

Federal Natl. Mtge. Assn. v Marlin, 2019 NY Slip Op 00095 [2d Dept. 2019]

When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, “[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” (Citibank, N.A. v Cabrera, 130 AD3d 861, 861; see CPLR 3408[a]).

In support of those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, Fannie Mae submitted affidavits of foreclosure specialists employed by Seterus, Inc., its loan servicer. The foreclosure specialists attested that they were personally familiar with the record-keeping practices and procedures of Seterus, Inc., but failed to lay a proper foundation for the admission of records concerning the defendants’ payment history and default. Accordingly, Fannie Mae failed to demonstrate that the records relied upon in the affidavits were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952, 954; US Bank NA v Handler, 140 AD3d 948, 949). Since Fannie Mae’s motion was based on evidence that was not in admissible form (see HSBC Mtge. Servs., Inc. v Royal, 142 AD3d at 954), Fannie Mae failed to establish its prima facie entitlement to judgment as a matter of law, and those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference should have been denied, regardless of the sufficiency of the defendants’ papers in opposition (see id., citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

We agree with the Supreme Court’s determination to grant that branch of Fannie Mae’s motion which was to strike the defendants’ affirmative defenses and counterclaims. To the extent that those portions of the answer relate to Residential’s alleged lack of standing, they were properly stricken, and the defendants make no arguments on appeal regarding the remaining affirmative defenses and counterclaims.

The bold is mine.

Pennsylvania Lumbermens Mut. Ins. Co. v B&F Land Dev. Corp., 2019 NY Slip Op 00292 [2d Dept. 2019]

The best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643; Stathis v Estate of Karas, 130 AD3d 1008, 1009; Kliamovich v Kliamovich, 85 AD3d 867, 869). Under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d at 643 [citations omitted]). The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original” (id. at 645).

Here, PLM failed to offer any explanation as to the unavailability of the primary evidence, i.e., the original policy. PLM also did not establish that the copy of the policy proffered at trial was a “reliable and accurate portrayal of the original” (id.). In that regard, during voir dire examination, Santoro acknowledged that he had compiled the copy of the policy proffered by PLM at trial based upon information contained in the underwriting file, and he could not explain the language discrepancy between that copy of the policy and the copy of the policy produced by PLM during discovery. Consequently, the Supreme Court should not have admitted into evidence the copy of the policy proffered by PLM at trial. The error was not harmless since, without the original policy or an accurate replication, PLM could not establish what locations were covered by the policy, what exclusions to coverage, if any, existed under the terms of the policy, or the insured’s responsibilities with respect to providing notice of the claim to PLM (see Stathis v Estate of Karas, 130 AD3d at 1011).

The bold is mine.

3211(a)(4) [pending action]

Jaber v Elayyan, 2019 NY Slip Op 00102 [2d Dept. 2019]

Under CPLR 3211(a)(4), a court has ” broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. It is not necessary that the precise legal theories presented in the first action also be presented in the second action so long as the relief . . . is the same or substantially the same'” (Dec v BFM Realty, LLC, 153 AD3d 497, 497, quoting Swartz v Swartz, 145 AD3d 818, 822; see Whitney v Whitney, 57 NY2d 731, 732). Similarly, while a complete identity of parties is not a necessity for dismissal under CPLR 3211(a)(4) (see Proietto v Donohue, 189 AD2d 807, 807; Barringer v Zgoda, 91 AD2d 811, 811), there must at least be a “substantial” identity of parties, “which generally is present when at least one plaintiff and one defendant is common in each action” (Morgulas v Yudell Realty, 161 [*2]AD2d 211, 213; see Cellino & Barnes, P.C. v Law Off. of Christopher J. Cassar, P.C., 140 AD3d 1732, 1734; Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 622; Proietto v Donohue, 189 AD2d at 807-808).

Here, there is no common plaintiff in the New York County and Richmond County actions, as the former action was commenced by the plaintiff’s brother and others, while the instant action was commenced by the plaintiff. Moreover, the subject matter of the two actions, although related, is not sufficiently similar to warrant the dismissal of the complaint in this action insofar as asserted against the defendant. The relief sought in each action is different, and the resolution of the former action would not necessarily resolve the instant plaintiff’s claim of equitable ownership of the property (see generally Sprecher v Thibodeau, 148 AD3d 654, 656; Parker v Rich, 140 AD2d 177, 178; Corporate Inv. Co. v Mount Vernon Metal Prods. Co., Inc., 206 App Div 273, 276). Since there is no sufficiently substantial identity of parties and subject matter in the two actions, the Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against him.

Social Media

Vasquez-Santos v Mathew, 2019 NY Slip Op 00541 [1st Dept. 2019]

Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” (Patterson v Turner Const. Co., 88 AD3d 617, 618 [1st Dept 2011]). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities (see Forman v Henkin, 30 NY3d 656, 665 [2018]; see also Abdur-Rahman v Pollari, 107 AD3d 452, 454 [1st Dept 2013]).

legal impossibility and injunctions

AmBase Corp. v Spruce Capital Partners LLC, 2019 NY Slip Op 00352 [1st Dept. 2019]

Insofar as plaintiffs seek a preliminary injunction, that remedy is “a legal impossibility,” and the appeal is moot (Divito v Farrell, 50 AD3d 405, 406 [1st Dept 2008]; see Currier v First Transcapital Corp., 190 AD2d 507, 508 [1st Dept 1993] [“an injunction may not issue to prohibit a fait accompli“]). The strict foreclosure that plaintiffs sought to enjoin occurred more than a year ago, in late August or early September 2017, and we denied plaintiffs’ motion for a stay, pending this appeal, of so much of the order as dissolved the TRO that had been granted (see 2018 NY Slip Op 61540[U] [Jan. 18, 2018]).

Plaintiffs’ request for a declaratory judgment is not moot, because plaintiff 111 West 57th Investment LLC (Investment) might be entitled to damages from defendant 111 W57 Mezz Investor LLC (Junior Mezz Lender) if it is judicially determined that Investment had the right to object to the strict foreclosure pursuant to Uniform Commercial Code (UCC) § 9-620(a)(2)(B) (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003])[FN1]. However, the complaint, as currently pleaded, mentions neither damages nor a constructive trust. Similarly, the complaint does not allege that the Spruce defendants acted in bad faith because they colluded with other defendants who are not party to this appeal or that Investment was entitled to object to the strict foreclosure under UCC 9-621(a)(1). As plaintiffs recognize, they need to replead or amend. As the order appealed from does not show that the dismissal was with prejudice, in and of itself, it does not prevent plaintiffs from moving for leave to amend or supplement the complaint.

The bold is mine.

CWCapital Cobalt VR Ltd. v CWCapital Invs. LLC, 2019 NY Slip Op 00408 [1st Dept. 2019]

The court did not abuse its discretion in denying a preliminary injunction (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). Plaintiff did not establish a likelihood of success on the merits, because, even without addressing the various questions surrounding plaintiff’s authority under the agreements, it did not take the requisite steps to remove and replace respondents as control class representative and special servicer under the indenture and collateral management agreement (CPLR 6301). Moreover, plaintiff has not shown that it will suffer irreparable harm absent injunctive relief, since the alleged harm would be compensable with monetary damages (id.). Finally, a balance of the equities does not weigh in plaintiff’s favor (Nobu at 839).

Not lost in translation

Watabe v Ci:Labo USA, Inc., 2019 NY Slip Op 00354 [1st Dept. 2019]

The court correctly found, upon renewal, that plaintiffs Sugioka’s and Otani’s affidavits in opposition to defendant’s motion were admissible. The fact that Sugioka and Otani, as well the other plaintiffs, testified at a deposition with the assistance of a Japanese translator does not preclude them from drafting their affidavits in English, and, accordingly, their affidavits did not need to be accompanied by an affidavit by a Japanese translator. Otani’s affidavit that was personally served on defendant was not otherwise inadmissible on the ground that it contained an electronic signature (State Technology Law § 304[2]).

5015 and 22 NYCRR 202.27

Diaz v Perlson, 2019 NY Slip Op 00194 [1st Dept. 2019]

“A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) must be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action” (Biton v Turco, 88 AD3d 519, 519 [1st Dept 2011]). Even assuming that plaintiff set forth a reasonable excuse for the failure to appear at the conference, the court providently exercised its discretion in denying the motion since plaintiff failed to show a meritorious cause of action (see e.g. Barclay v Etim, 129 AD3d 591 [1st Dept 2015], lv dismissed 28 NY3d 948 [2016]).

Thomas v Karen’s Body Beautiful LLC, 2019 NY Slip Op 00241 [1st Dept. 2019]

 We find that the motion court correctly determined that the affidavits constituted mere conclusory denials, which were insufficient to raise an issue of fact as to proper service. (Grinshpun v Borokhovich, 100 AD3d 551, 552 [1st Dept 2012], lv denied 21 NY3d 857 [2013]; Colebrooke Theat. LLP v Bibeau, 155 AD3d 581, 581 [1st Dept 2017], lv dismissed 31 NY3d 1137 [2018]; Reliable Abstract Co., LLC v 45 John Lofts, LLC, 152 AD3d 429, 429 [1st Dept 2017], lv dismissed 30 NY3d 1056 [2018]).

Join em if ya got em AND when does a day end

Matter of Stephen & Mark 53 Assoc. LLC v New York City Dept. of Envtl. Protection, 2019 NY Slip Op 00072 [1st Dept. 2019]

This Court affirms the dismissal of the proceeding on an alternative basis argued to but not reached by the motion court (see Chanin v Machcinski, 139 AD3d 490 [1st Dept 2016]). Petitioner’s failure to join as a party the condominium board, which installed the backflow prevention device in dispute, constitutes a failure to join a necessary party (see Matter of Ferrando v New York City Bd. of Stds. & Appeals, 12 AD3d 287, 288 [1st Dept 2004]). Since the applicable statutory period has expired and the condominium board can no longer be joined, and proceeding in its absence would potentially be highly prejudicial to it, the proper remedy is dismissal of the proceeding rather than joinder of the condominium board (id.; see also CPLR 1001 and 1003).

The proceeding was also properly dismissed against respondent Department of Health for the independent reason that it did not make any final determination within the meaning of article 78 (see CPLR 7801[1], 7803[3]; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]).

In view of the foregoing, we need not reach the issue of whether the proceeding was timely commenced because a filing made at midnight should be considered as having been made on the day leading up to the midnight. We note, however, that there is conflicting authority regarding whether a day ends at midnight, begins at midnight, or both ends and begins at midnight, and the parties have not cited to any cases involving the precise situation at issue here.

Severed

Drir v U-9 Rest. Assoc., Inc., 2019 NY Slip Op 00079 [1st Dept. 2019]

The motion court providently exercised its discretion in severing the third-party actions, based on the record before it, which reflected that discovery in the main action was complete and discovery in the second third-party action had barely commenced, and that plaintiff would be prejudiced by a delay in further discovery due to a 180-day stay of a liquidation and/or reorganization proceeding involving the insurer for the second third-party defendants (see Golden v Moscowitz, 194 AD2d 385 [1st Dept 1993]; Weber v Baccarat, Inc., 70 AD3d 487 [1st Dept 2010]). Defendants/second third-party plaintiffs retain their right of contribution, which they can exercise, if necessary, upon resolution of the liquidation/reorganization proceeding (see Kharmah v Metropolitan Chiropractic Ctr., 288 AD2d 94 [1st Dept 2001]; Moy v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 92 AD3d 651 [2d Dept 2012]).

Relation back: CPLR 203(f)

Ramirez v Elias-Tejada, 2019 NY Slip Op 00021 [1st Dept. 2019]

CPLR 203(f) is a codification of the relation back doctrine (O’Halloran v Metropolitan Transp. Authority, 154 AD3d 83, 86 [1st Dept 2017]). It provides that “[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions [or] occurrences . . . to be proved pursuant to the amended pleading” (CPLR 203[f]; see also Giambrone v Kings Harbor Multicare Ctr., 104 AD3d 546, 548 [1st Dept 2013]). Application of the relation back doctrine allows a plaintiff to “correct a pleading error—by adding either a new claim or a new party—after the statutory limitations period has expired” (Buran, 87 NY2d at [*3]177). Where, as here, a plaintiff seeks to add new defendants, not just assert more claims against defendants already in the action, the following three conditions must be met before claims against one defendant may relate back to claims against another:

“(1) both claims arose out of same conduct, transaction or occurrence; (2) the new party is united in interest’ with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for a[] … mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well” (id. at 178 [internal quotation marks omitted]).

***

Ramirez and Peralta failed to submit proof in admissible form entitling them to summary judgment on the threshold issue of serious injury, because the medical records they submitted were not sworn or certified (CPLR 4518[c]). In addition, their cross motion was untimely, and serious injury was not the subject of a timely motion (see Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281-282 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]). As to liability, Ramirez and Peralta’s argument is merely that they were not culpable. Although lack of culpable conduct also was not the subject of a timely motion, and although Ramirez and Peralta are not entitled to summary judgment on the issue of defendants’ negligence, we grant these plaintiffs summary judgment on the limited issue of their lack of culpable conduct, because defendants do not dispute that as innocent passengers they were not at fault in the happening of the accident (see Oluwatayo v Dulinayan, 142 AD3d 113, 115 [1st Dept 2016]).

CPLR 202: Borrowing Statute

Soloway v Kane Kessler, PC, 2019 NY Slip Op 00026 [1st Dept. 2019]

The court correctly found the complaint time-barred under CPLR 202, New York’s “borrowing statute,” which requires a claim to be timely under both the New York limitations period and that of the jurisdiction where the claim is alleged to have arisen (Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 71 AD3d 580 [1st Dept 2010]).