Category: CPLR

Finally, we discern no abuse of discretion in Supreme Court's decision
to grant plaintiff partial summary judgment on his Labor Law § 240
(1) claim without providing Edison with additional time within which to
complete discovery (see CPLR 3212 [f]). Edison offered no
explanation for its failure to depose plaintiff during the 10 months
since it filed its answer (see Steinborn v Himmel, 9 AD3d 531, 535 [2004]; cf. Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 20 AD3d 805,
806 [2005]). Also, in opposition to plaintiff's motion, Edison
submitted an affidavit of plaintiff's coworker who witnessed his fall,
undermining Edison's unsupported and speculative claim that plaintiff
"may have exclusive knowledge of facts which may defeat his [*3]motion and claims in general" (see Steinborn v Himmel, 9 AD3d at 535; Oliveira v County of Broome, 5 AD3d 898, 899 [2004]). Given Edison's inadequate showing, the grant of summary judgment to plaintiff was not premature.

Supreme Court did not abuse its discretion in enforcing the order of
preclusion. "[T]he conditional order was self-executing and
[defendant]'s failure to produce [requested] items on or before the
date certain rendered it absolute" (Wilson v Galicia Contr. & Restoration Corp.,
10 NY3d 827, 830 [2008] [internal quotation marks and citations
omitted]). Defendant's overall pattern of noncompliance, both in
response to plaintiff's repeated demands for the requested disclosure
and following the issuance of the stipulated conditional order of
preclusion, gives rise to an inference that her conduct was willful and
contumacious (see Du Valle v Swan Lake Resort Hotel, LLC, 26 AD3d 616, 617-618 [2006]; Robinson Saw Mill Works v Speilman, 265 AD2d 604, 606 [1999]; Tleige v Troy Pediatrics,
237 AD2d 772, 773-774 [1997]). Notably, defendant stipulated to the
consequences of her conduct and proffered no adequate excuse for her
noncompliance (see Greaves v Burlingame, 12 AD3d 730, 731 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]; Cavanaugh v Russell Sage Coll., 4 AD3d 660,
660-661 [2004]). Under these circumstances, we cannot conclude that
Supreme Court improvidently exercised its discretion in ordering the
preclusion of defendant's evidence.

Nor do we find error in Supreme Court's award of summary
judgment in favor of plaintiff and dismissal of defendant's
counterclaim. Plaintiff made a prima facie showing of entitlement to
judgment for the unpaid balance of the work performed by producing,
among other things, work estimates signed by the parties, billing
statements, and evidence demonstrating that the agreed-upon work was
performed and that a portion of the work went unpaid. Defendant, unable
to offer any admissible evidence as a consequence of the order of
preclusion, failed to raise an issue of fact sufficient to withstand
summary judgment (see CPLR 3212 [b]; Zuckerman v New York,
49 NY2d 557, 562 [1980]). Similarly, in the absence of any competent
proof to support her counterclaim, it was also properly dismissed by
Supreme Court.

On a motion to dismiss a complaint for failure to state a cause of
action under CPLR 3211(a)(7), the facts alleged in the complaint must
be accepted as true and given every favorable inference, and
"affidavits submitted by a [defendant] will almost never warrant
dismissal … unless they establish conclusively that [plaintiff] has
no [claim or] cause of action'" (Lawrence v Miller, NY3d , 2008 NY Slip Op 9434, *8, quoting Rovello v Orofino Realty Co., 40
NY2d 633, 635-636 [1976]). Applying this review standard, we find that
plaintiff's action against the Gold defendants was prematurely
dismissed. Plaintiff has not had the opportunity to lay bare admissible
proof as to defendants' alleged wrongful conduct, and although
defendants' [*2]supporting affidavit may
have presented a seemingly strong defense, it did not conclusively
establish that plaintiff has no cause of action.

However, the plaintiff sufficiently alleged the third cause of action
to recover damages under the theory of strict liability. On a motion to
dismiss pursuant to CPLR 3211(a)(7), the court may consider affidavits
submitted by the plaintiff to remedy any defects in the complaint (see Leon v Martinez, 84 NY2d 83, 88; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636; Meyer v Guinta, 262 AD2d 463, 464).

In their answer, the defendants asserted counterclaims based on certain
allegedly fraudulent misrepresentations made by the plaintiff. In order
to prevail on the counterclaims, the defendants would have to
demonstrate, among other things, that they justifiably relied on the
plaintiff's alleged misrepresentations, and were injured as a result of
those misrepresentations (see Channel Master Corp. v Aluminum Ltd. Sales,
4 NY2d 403, 407). However, even when accepting the facts alleged in
support of the counterclaims as true, and according the defendants the
benefit of every possible favorable inference (see Leon v Martinez,
84 NY2d 83, 87), the counterclaims are not supported by sufficient
allegations from which it could reasonably be found that the defendants
justifiably relied on the alleged misrepresentations (see Sareen v Sareen, 51 AD3d 765). Furthermore, some of the counterclaims are not supported by sufficient allegations from which it could reasonably be found [*2]that the defendants were injured as a result of the alleged misrepresentations (see Old Clinton Corp. v 502 Old Country Rd., 5 AD3d 363,
364-365). Under these circumstances, the Supreme Court should have
granted that branch of the plaintiff's motion which was to dismiss the
counterclaims (seesee also CPLR 3016[b]).
CPLR 3211[a][7];

Defendants are not entitled to dismissal of the complaint pursuant
to CPLR 3211(a)(1), since they have not demonstrated that the
documentary evidence definitively resolves all material issues of fact,
thereby resulting in the failure of plaintiff's claim as a matter of
law (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]; Foster v Kovner, 44 AD3d 23,
28 [2007]). Accepting as true the facts alleged in the complaint for
the purpose of the motion, according plaintiff the benefit of every
favorable inference, and determining whether the facts as alleged fit
any cognizable legal theory (see Leon v Martinez, 84 NY2d 83,
87-88 [1994]), we reject the argument that defendant Spahn owned her
share of the property individually as a tenant in common, since all of
the individual owners transferred their equity interests in the
property to a family partnership set up for that purpose. Spahn
allegedly violated the terms of the partnership agreement, which
required her to obtain the consent of the remaining partners prior to
selling or assigning her interest in the property.

Defendants are also not entitled to dismissal under CPLR
3211(a)(3), lacks the capacity to sue as co-executrix. A fiduciary has
an obligation to protect the interests of the estate especially where a
co-fiduciary is alleged to have acted to the contrary (see SCPA 2102 [6]; Matter of Wallens, 9 NY3d 117 [2007]; Birnbaum v Birnbaum, 73 NY2d 461 [1989]; see also Matter of Donner, 82 NY2d 574 [1993]).

Plaintiffs moved pursuant to CPLR 4404 for various alternative relief including setting aside the verdict regarding pain and suffering and loss of consortium, assessing a damage award for such items, or directing a new trial. Supreme Court denied the motion. Plaintiffs appeal.

We find merit in plaintiffs’ argument that Supreme Court placed unduly restrictive time constraints on the questioning of prospective jurors. Over plaintiffs’ objections, both before and after voir dire, the court limited questioning in each round to 15 minutes. While the trial court is accorded discretion in setting time limits for voir dire (see 22 NYCRR 202.33; Horton v Associates in Obstetrics & Gynecology, 229 AD2d 734, 735 [1996] [60 minutes for first round and 30 minutes for subsequent rounds upheld]), the 15 minutes allowed for each round under the circumstances of this case was unreasonably short (see “Implementing New York’s Civil Voir Dire Law and Rules,” http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire 2009.pdf [New York State Unified Court System, Jan. 2009, accessed Feb. 25, 2009], at 6 [stating that “(i)n a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire”]). This case involved close factual and medical issues, and evidence from several experts was presented at trial. Issues implicated involved, among others, proof regarding four distinct injuries and four surgeries, challenges to causation regarding each injury, the relevance and impact of plaintiff’s preexisting conditions, the weight to be given evidence from several experts with markedly varying opinions, and consideration of appropriate compensation for a variety of asserted injuries. Notwithstanding that liability was not an issue, the case was not simple and straightforward. We cannot conclude from this record that plaintiffs were not prejudiced by the extremely short time permitted for voir dire.

Adding credence to plaintiffs’ first argument is the merit of their next argument, i.e., the jury’s verdict deviated materially from reasonable compensation. Initially, we note as to the reasonable compensation issue that, contrary to defendant’s contention, the issue is properly before us (see Califano v Automotive Rentals, 293 AD2d 436, 437 [2002]; see also Smith v Sheehy, 45 AD3d 670, 671 [2007]). Although “[i]t is well settled that the amount awarded as damages for personal injuries is a factual question for the jury and considerable deference must be accorded to the jury with regard to the interpretation of the evidence . . . and assessments of credibility” (Molter v Gaffney, 273 AD2d 773, 773 [2000] [internal quotation marks and citations omitted]; see Johnson v Grant, 3 AD3d 720, 722 [2004]), nevertheless a jury verdict will generally be considered flawed when a serious injury under the No-Fault Law is found or conceded, but the jury then makes no award for pain and suffering (see Vogel v Cichy, 53 AD3d 877, 880 [2008]; Gillespie v Girard, 301 AD2d 1018, 1018-1019 [2003]; Califano v Automotive Rentals, 293 AD2d at 437; see also Hayes v Byington, 2 AD3d 1468, 1469 [2003]; Ciatto v Lieberman, 1 AD3d 553, 557 [2003]; 8 Weinstein-Korn-Miller, NY Civ Prac ¶ 4404.22). Here, making no award for past pain and suffering after finding that plaintiff sustained a serious injury was a material deviation from reasonable compensation. Moreover, it cannot be discerned from the record which injuries the jury found were related to the accident or which one (or more) they found to be a serious injury. Under such circumstances, and in light of both the previously discussed error in voir dire and the likelihood that the verdict resulted from an impermissible compromise, we conclude that a new trial on all issues (except liability which defendant conceded) is required (cf. Ciatto v Lieberman, 1 AD3d at 557; Califano v Automotive Rentals, 293 AD2d at 436-437).