Category: CPLR

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered
October 16, 2008, which, in an action by a tenant against its landlord
and managing agent for property damages and business interruption
caused by water infiltration, granted defendants' motion pursuant to
CPLR 3126 to dismiss plaintiff's complaint for noncompliance with
disclosure orders unless plaintiff provided certain discovery, mostly
related to its business interruption claim, by October 28, 2008,
unanimously modified, on the facts, to grant the motion unless, within
30 days after service of a copy of this order, plaintiff pays
defendants' attorney $5,000, and otherwise affirmed, with costs in
favor of defendants, payable by plaintiff.

Defendants acknowledge that plaintiff provided the discovery
responses by October 28, 2008, and do not assert prejudice as a result
of general delay, but argue that the action should have been dismissed
outright because of plaintiff's failure to explain its noncompliance
with prior court orders directing discovery. While the drastic relief
that defendants seek was properly denied for lack of a clear showing
that the noncompliance was willful or contumacious (see Delgado v City of New York, 47 AD3d 550 [2008]), plaintiff's inexcusable laxness "should not escape adverse consequences" (Figdor v City of New York, 33 AD3d 560, 561 [2006]; see Postel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]), and we modify accordingly.

The threshold question, however, is whether the June 5, 2008
document bearing the caption of this action and which is entitled
"Notice to Admit" constitutes a notice to admit under CPLR §3123
such that defendants' non-response to same within twenty days of
service thereof constitutes an admission of "[e]ach of the matters of
which an admission is requested" (id.). The Court concludes that it does not.

Although the June 5, 2008 document bears the caption of the
action and has the words "Notice to Admit" underlined and typed in bold
just above the index number which is located to the right of the
caption, there is neither any reference to CPLR §3123 nor, for
that matter, any other statutory authority. While such an omission
would not, in and of itself be determinative of the issue, there are
other factors which play a role in the Court's determination.

An examination of the introductory paragraph to the forty-eight
enumerated statements to which admissions are allegedly sought reads as
follows:

PLEASE TAKE NOTICE, that plaintiffs . . . hereby appear in the
above entitled action, and that the undersigned has been retained as
attorneys for said defendants and hereby waive[] service of all papers
and of notices of all proceedings in the action except, all motions and
court appearances, notice of sale and notice of proceedings to obtain
surplus monies.

This language is in stark contrast to the introductory and
instructional language that one might expect to find in a notice to
admit, such as, for example:

PLEASE TAKE NOTICE that pursuant to CPLR § 3123, you are
herebyrequested to furnish to the undersigned, within twenty (20) days
after theservice of this notice, a written admission to the following
facts:

(3 N.Y.Prac., Com. Litig. in New York State Courts § 25:19 [2d ed.]).

The effect of "[a]ny admission made, or deemed to be made, by a
party pursuant to a request made under this rule [CPLR §3123] is
for the purpose of the pending action . . . only. . ." (CPLR
§3123[b]). Nonetheless, the importance and potential consequences
of such admissions cannot be ignored. For example, it is proper for the
Court to take into account deemed admissions upon consideration of a
motion for summary judgment (Miserendino, Krull & Foley v. Crump , 64 AD2d 842-843 [4th Dept., 1978] citing Carlson v. Travelers Ins. Co.,
35 AD2d 351, 353 [2d Dept., 1970]; 3A Weinstein-Korn-Miller,
N.Y.Civ.Prac., par. 3123.135), as is herein requested by plaintiffs.
The depth of such admissions are equally consequential, going so far as
to bind one even upon appeal (see, In re Cohn , 46 AD3d
680, 681 [2d Dept., 2007][facts set forth in five notices to admit to
which party failed to respond are deemed true for the purpose of
appeal]; see also, Carlson v. Travelers Ins. Co. , 35 AD2d 351 [2d Dept., 1970] ).
[*3]

Given the potential and
far-reaching consequences of a section 3123 deemed admission, the Court
finds that any ambiguity in papers purporting to constitute a 3123
notice to admit must be construed against the drafter, here plaintiffs.

With that in mind and upon taking into account the absence of
any reference to CPLR §3123, the lack of any written notice as to
what the forwarding party is demanding of the recipient (see e.g. 3 N.Y.Prac., Com. Litig. in New York State Courts § 25:19 [2d ed.], supra),
and upon consideration of the introductory language actually present
therein, the Court concludes that the subject "Notice to Admit" does
not constitute a notice to admit within the statutory meaning, spirit
or intent of CPLR §3123. As such, no legal consequences flow under
CPLR §3123 from defendants failure to have responded to same.

Since the absence of the desired deemed admissions are fatal to
plaintiffs' motion for summary judgment, the motion is hereby denied.

Respondent operates a pizzeria at the base of the world-famous Empire
State Building. It is obligated to pay for electricity pursuant to a
complex formula. Recently, petitioner's bills to respondent for
electricity have "gone through the roof." Respondent has refused to
pay, and petitioner has commenced the instant non-payment proceeding.
For a variety of reasons (and without casting any blame), the case has
been on the calendar on many occasions, and is getting rather old for a
"summary" proceeding. Respondent now moves for discovery, seeking, most
significantly, a deposition of petitioner's electrical consultant and,
also, a bill of particulars and documents.

Discovery is available in summary proceedings only upon a showing of "ample need." CPLR 408; Antillean Holding Co. v Lindley,
76 Misc 2d, 1044, 1047 (Civ Ct, NY County 1973) (Kassal, J.).
Respondent argues, not without some merit, that the "ample need" here
is that without, at least, a deposition, respondent will not know how
to defend against petitioner's case [*2]because it does not know how petitioner is calculating the charges, and the justifications therefor.

…

Furthermore, although this Court has studiously avoided, heretofore,
using the term "expert," respondent is, essentially, attempting to
depose petitioner's expert witness, for which the CPLR does not
provide. Moreover, respondent's proposed Demand for Verified Bill of
Particulars and Combined Discovery Demands are rejected in their own
right as they are improperly broad and vague.


In the final analysis, respondent will have many opportunities
to understand and defend against petitioner's claim for electrical
charges, without "ample need" for pre-trial disclosure, other than as
provided for herein.

Thus, the instant motion is denied, conditional on
petitioner's producing to respondent, by 3/26/09, all of the documents
related to electrical charges that petitioner intends to produce at
trial; respondent may request a continuance at the end of petitioners'
case, the granting of which will be completely at the discretion of the
trial judge; and the parties are directed to appear in Part [*3]52, Room 1166, on 4/7/09, at 9:30 AM, for all purposes, including trial.

On reargument, the court denied defendants' motion because the
alleged malpractice occurred in the Bronx. However, venue is based on
the parties' residence (CPLR 503[a]), not where the cause of action
arose (Hitchoff v Air Brook Limousine, Inc., 26 AD3d 310 [2006]). The "residence" of a natural person is his or
her abode, not office (see Friedman v Law, 60 AD2d 832
[1978]), and the individual defendant here resides in Westchester
County. The corporate defendant also "resides" in Westchester. "The
designation of a county as the location of a corporation's principal
office in a certificate of incorporation is controlling in determining
corporate residence for the purposes of venue" (Conway v Gateway Assoc., 166 AD2d 388, 389 [1990]), even if the corporation maintains an office or facility in another county (Altidort v Louis, 287 AD2d 669, 670 [2001]), and even if it is a professional corporation (see Della Vecchia v Daniello, 192 AD2d 415 [1993]).

In its original decision, the motion court properly found
plaintiff's affidavit insufficient as proof of her residence because it
contradicted her prior deposition testimony that she had moved from the
Bronx to New Jersey prior to November 22, 2006, the date on which she
commenced this action (see Nemeroff v Coby Group, 54 AD3d 649,
650-651 [2008]). In this regard, plaintiff had testified that she
thought she moved to New Jersey on a Friday during the third week of
November 2006 on what she thought was the 18th day of the month ^[FN1].
While the dissent construes this testimony as an expression of
uncertainty, we find it an admission. We look to Federal Rules of
Evidence rule 801(d)(2)(B), which defines a party's admission as "a
statement of which the party has manifested an adoption or belief
in its truth [emphasis added]." Inasmuch as the phrase "I think" is an
expression of belief, we conclude that such an expression can be an
admission. The binding effect of such an admission is illustrated by
this Court's recent decision in McNeill v [*2]LaSalle Partners (52 AD3d 407 [2008]), which reads, in part, as follows:

"The trial court also erred in precluding appellants
from questioning plaintiff on cross-examination about his deposition
testimony that the liquid on which he slipped might have been
encapsulate' (a milky liquid used in the abatement of asbestos). . . At
his deposition, plaintiff testified that he thought the liquid
on which he slipped could be some kind of encapsulate, but I wasn't
sure.' At trial, however, plaintiff testified that he had no idea what
kind of liquid had caused his accident. Under these circumstances,
appellants were entitled to question plaintiff about the deposition
testimony in question, both for purposes of impeachment and to use the
prior inconsistent testimony as evidence-in-chief that the liquid was encapsulate" (id. at 410 [emphasis added]).

Unquestionably an affidavit tailored to avoid the consequences of a deposition lacks evidentiary value (see Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]). For example, in Concepcion v Walsh (38 AD3d 317,
318 [2007]) we stated that: "[w]hile plaintiff's mother's affidavit
asserts that there was peeling or chipping paint, her deposition
testimony was that she did not know; accordingly, her affidavit lacks
evidentiary value." Since plaintiff failed to submit documentary
evidence (other than her own self-serving statement) supporting her
claim that she resided in the Bronx when she commenced this action, and
since this case does not involve conflicting affidavits, there is no
need to hold a hearing as suggested by plaintiff and the dissent (see Martinez v Semicevic, 178 AD2d 228 [1991]; cf. Rivera v Jensen,
307 AD2d 229 [2003]). In this instance, the distinction the dissent
draws between formal and informal admissions is of no moment. This is
because plaintiff's deposition constituted the only evidence of plaintiff's place of residence albeit "some evidence" of same.

Plaintiff's designation of New York County as the venue for this
action was proper, since corporate defendant's principal place of
business is located within that county (CPLR 503[c]; see Margolis v United Parcel Serv., Inc., 57 AD3d 371
[2008]). In order to obtain a discretionary change of venue under CPLR
510(3), "the moving party must provide detailed justification for such
relief in the form of the identity and availability of proposed
witnesses, the nature and materiality of their anticipated testimony,
and the manner in which they would be
inconvenienced by the initial venue" (Rodriguez v Port Auth. of N.Y. & N.J., 293 AD2d 325, 326 [2002]).

Defendants failed to meet this burden. In support of the motion,
defendants submitted, inter alia, an affidavit from defendant driver
Ferraro, "whose convenience [is] not a factor for consideration on the
motion" (Gissen v Boy Scouts of Am., 26 AD3d 289,
291 [2006]), and who failed to particularize his anticipated testimony.
It is further noted that in opposition to defendants' motion, plaintiff
submitted an affidavit from an eyewitness to the motor vehicle
accident, who stated that she was available to testify and would not be
inconvenienced by traveling to New York County.

To be entitled to a preliminary injunction, the moving party has the
burden of demonstrating (1) a likelihood of success on the merits, (2)
irreparable injury absent granting the preliminary injunction, and (3)
a balancing of the equities in the movant's favor (see CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642,
643). The purpose of a preliminary injunction is to maintain the status
quo and prevent the dissipation of property that could render a
judgment ineffectual (see Ruiz v Meloney, 26 AD3d 485, 486; Ying Fung Moy v Hohi Umeki, 10 AD3d 604). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Ruiz v Meloney, 26 AD3d at 486).

Here, the plaintiff failed to meet his burden of demonstrating
that he would suffer irreparable injury if the preliminary injunction
were not granted (see Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072, 1073; Khan v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 271 AD2d 656, 657; Neos v Lacey, 291 AD2d 434, 435; Kurzban & Son v Board of Educ. of City of N.Y., 129 AD2d 756, 757). Accordingly, the Supreme Court properly denied his cross [*2]motion for a preliminary injunction.

In an action to recover payment for professional nursing care
services, to set aside a conveyance of real property as fraudulent, and
to declare the subject deed null and void, nonparty Green Tree Credit,
LLC, f/k/a Conseco Finance Credit Corp., appeals from an order of the
Supreme Court, Kings County (Dabiri, J.), dated December 17, 2007,
which denied its motion, in effect, pursuant to CPLR 2221(a) and
1001(a) to vacate those portions of a prior order of the same court
dated December 5, 2006, granting that branch of the plaintiff's motion
which was for leave to amend the complaint to add a cause of action to
set aside a deed of real property to the defendant as fraudulent, and
amended a prior order and judgment (one paper) of the same court
(Ruchelsman, J.), dated September 12, 2005, to include a declaration
that the subject deed is null and void and a direction to the County
Clerk of Kings County to mark the records accordingly.

ORDERED that the order is reversed, on the law, with costs, the
nonparty-appellant's motion, in effect, pursuant to CPLR 2221(a) and
1001(a) is granted, and those provisions of the December 5, 2006, order
which granted that branch of the plaintiff's motion which was for leave
to amend the complaint and which amended the order and judgment dated
September 12, 2005, to include a declaration that the subject deed is
null and void and a direction to the County Clerk of Kings County to
mark the records accordingly are vacated, and that branch of the
plaintiff's motion which was for leave to amend the complaint is
denied.
[*2]

"It is a fundamental legal
principle that an individual may not be deprived of property without
due process of law, which requires that one be accorded notice and an
opportunity to be heard" (Friedman v Friedman, 125 AD2d 539,
541). Contrary to the plaintiff's contention and the determination of
the Supreme Court, the plaintiff was required to join the
nonparty-appellant, Green Tree Credit, LLC, f/k/a Conseco Finance
Credit Corp. (hereinafter Green Tree), the mortgagee of the subject
premises, as a necessary party in its cause of action to set aside the
conveyance of the subject premises as fraudulent, and to declare the
subject deed null and void (see CPLR 1001[a]; Ameriquest Mtge. Co. v Gaffney, 41 AD3d 750, 751; Losner v Cashline, L.P., 284 AD2d 433; Friedman v Friedman, 125 AD2d 539, 541; see e.g. Skiff-Murray v Murray, 17 AD3d 807).
Accordingly, the failure of the plaintiff to join Green Tree as a
defendant requires that the portions of the Supreme Court's resulting
order dated December 5, 2006, granting that branch of the plaintiff's
motion which was for leave to amend the complaint to add a cause of
action to set aside the conveyance of the subject premises as
fraudulent, and to declare the subject deed null and void, and amending
a prior order and judgment of the same court to include a declaration
that the subject deed is null and void and a direction to the County
Clerk of Kings County to mark the records accordingly be vacated, and
that that branch of the plaintiff's motion which was for leave to amend
the complaint be denied.