Category: CPLR

CPLR R. 305(c) Amendment to Correct a Misnomer

CPLR R. 305 Summons; supplemental summons, amendment

(c) Amendment

Smith v Giuffre Hyundai, Ltd., 2009 NY Slip Op 02587 (App. Div., 2nd, 2009)

"Under CPLR 305(c), an amendment to correct a misnomer will be
permitted if the court has acquired jurisdiction over the intended but
misnamed defendant provided that . . . the intended but misnamed
defendant was fairly apprised that [it] was the party the action was
intended to affect [and] would not be prejudiced' by allowing the
amendment" (Holster v Ross, 45 AD3d 640, 642, quoting Simpson v Kenston Warehousing Corp., 154 AD2d 526, 527; see Perrin v McKenzie, 266 AD2d 269, 270; Pugliese v Paneorama Italian Bakery, 243 AD2d 548; Ober v Rye Town Hilton, 159 AD2d 16; Creative Cabinet Corp. of AM v Future Visions Computer Store, 140 AD2d 483).

Here, because the plaintiff never established that she obtained
jurisdiction over Giuffre White Plains, her cross motion was properly
denied. First, by serving on the Secretary of State a summons and
complaint naming Giuffre Brooklyn as the defendant, the plaintiff did
not thereby also obtain jurisdiction over the entirely separate
corporate entity of Giuffre White Plains, despite their having the same
forwarding address. Upon receipt of the summons by the Secretary of
State, service was complete and jurisdiction was obtained only over the
named party (see Associated Imports v Amiel Publ., 168 AD2d 354; Micarelli v Regal Apparel, 52 AD2d 524; see generally Siegel
NY Prac § 70, at 110 [3d ed]). Moreover, the Secretary of State's
forwarding of process properly served on it for Giuffre Brooklyn did
not thereby confer jurisdiction over Giuffre White Plains (see generally CPLR
311[a][1]). Further, there is no evidence in the record that the
process delivered personally to the Brooklyn address was delivered to a
person authorized to accept service of process for Giuffre White Plains
(see CPLR 311[a][1]; Rinzler v Jafco Assoc., 21 AD3d 360, 362; Feszczyszyn v General Motors Corp., 248 AD2d 939, 940-941; Pugliese v Paneorama Italian Bakery Corp., 243 AD2d 548, 549; cf. Balderman v Capital City/Am. Broadcasting Co.,
233 AD2d 861, 862). In the absence of jurisdiction over Giuffre White
Plains, the Supreme Court properly denied the plaintiff's cross motion
for leave to amend the caption.

CPLR R. 2221(e) Motion for Leave to Renew

CPLR R. 2221(e) motion for leave to renew

Rappaport v North Shore Univ. Hosp., 2009 NY Slip Op 02579 (App. Div., 2nd, 2009)

After the plaintiffs failed to file a note of issue in compliance
with a certification order dated July 8, 2005, the action was dismissed
pursuant to CPLR 3216 on October 28, 2005. Almost two years later, the
plaintiffs moved, in effect, to vacate the dismissal and to restore the
action to the active calendar. The Supreme Court denied the plaintiffs'
motion on the ground that the plaintiffs failed to provide an affidavit
of merit from a medical expert. The plaintiffs subsequently moved,
inter alia, for leave to renew their motion to vacate, supported by a
physician's affidavit of merit. The court denied that branch of the
plaintiffs' motion which was for leave to renew, finding that the
plaintiffs had failed to establish a valid excuse for not submitting
the expert affidavit with the prior motion to vacate.

A motion for leave to renew must be based upon new facts not offered on the prior motion [*2]that
would change the prior determination, and the motion must also contain
a reasonable justification for the failure to present such facts on the
prior motion (see CPLR 2221[e]; Chunqi Liu v Wong, 46 AD3d 735; Peycke v Newport Media Acquisition II, Inc., 40 AD3d 722; Williams v Nassau County Med. Ctr., 37 AD3d 594).
Here, the affidavit of merit, which was conclusory, would not have
changed the prior determination, as it was insufficient to establish
that the medical malpractice action was meritorious (see Nowell v NYU Med. Ctr., 55 AD3d 573, 574; Bollino v Hitzig, 34 AD3d 711; Perez v Astoria Gen. Hosp.,
26 AD2d 457, 458). Since the new affidavit proffered by the plaintiffs
would not have changed the prior determination, that branch of the
plaintiffs' motion which was for leave to renew was properly denied (see Peycke v Newport Media Acquisition II, Inc., 40 AD3d 722; Williams v Nassau County Med. Ctr., 37 AD3d 594).


CPLR § 3126; CPLR § 3104; CPLR

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR § 3104 Supervision of disclosure

CPLR § 3101

Parker v Ollivierre, 2009 NY Slip Op 02576 (App. Div., 2nd, 2009)

In addition, we agree with the appellant that the plaintiff's counsel
acted improperly at the plaintiff's deposition, among other things, by
making "speaking objections," correcting the plaintiff's testimony, and
directing the plaintiff on a number of occasions not to answer certain
questions. The questions were designed to elicit information which was
material and necessary to the appellant's defense of this action (see CPLR 3101[a]; Allen v Crowell-Collier Pub. Co., 21
NY2d 403, 406-407), and the directions not to answer them were not
otherwise authorized by 22 NYCRR 221.2. While the Supreme Court
properly denied that branch of the appellant's motion which was to
strike the complaint, as that remedy was too drastic a sanction (see Bjorke v Rubenstein, 38 AD3d 580,
571), under the circumstances, the alternative branch of the cross
motion, which was to compel the further deposition of the plaintiff
under the supervision of a referee (see CPLR 3104), should have been granted.

CPLR R. 3212 Hearsay

CPLR R. 3212 Motion for summary judgment

Lucas v Fulton Realty Partners, LLC, 2009 NY Slip Op 02567 (App. Div., 2nd, 2009)

The appellant's submission of unsworn workers' compensation forms,
completed by persons with no apparent firsthand information of how the
accident occurred, was insufficient to raise a triable issue of fact
with respect to the issue of causation (see Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991, 992; Hanly v Quaker Chem. Co., Inc., 29 AD3d 860, 861; Bates v Yasin, 13 AD3d 474; Reed v New York City Tr. Auth., 299 AD2d 330, 332; Morissaint v Raemar Corp., 271 AD2d 586, 587; Daliendo v Johnson,
147 AD2d 312, 321). Accordingly, since there were no triable issues of
fact, summary judgment was properly awarded to the plaintiffs against
the appellant on the issue of liability on the Labor Law § 240(1)
causes of action.

CPLR § 3104(a); § 4001; R. 4212; § 4317

CPLR § 3104 Supervision of disclosure

CPLR § 4001 Powers of referees

CPLR R. 4212 Advisory jury; referee to report

CPLR § 4317 When reference to determine may be used

Llorente v City of New York, 2009 NY Slip Op 02566 (App. Div., 2nd, 2009)

Although a court lacks the authority to sua sponte appoint a private
attorney to serve as a Referee to oversee discovery, and to be
compensated by the parties without their consent (see Surgical Design Corp. v Correa, 309 AD2d 800; Warycha v County of Westchester, 273
AD2d 434), here the Supreme Court did not refer the in camera review of
over 4,000 documents to a named private attorney, but rather to a Court
Attorney Referee pursuant to CPLR 3104(a). Therefore, consent of the
parties was not required.

Contrary to the plaintiffs' contention, the order dated
December 20, 2007, did not direct the Court Attorney Referee to "hear
and determine" the motions of the defendants City of New York,
Administration for Children's Services, and Little Flower Children's
Services (hereinafter the defendants) for protective orders. The order
expressly limited the Court Attorney Referee to "hear and report on whether or to what extent [the] defendants' motions for protective orders should be granted" (emphasis added) (see CPLR 4001; compare CPLR 4212, 4317). Accordingly, the Supreme Court's appointment of a Court Attorney Referee to oversee discovery was within its authority and was not an improvident exercise of discretion.


CPLR R. 3211(a)(5) General Release

CPLR R. 3211 Motion to dismiss

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds


Lipiner v Santoli, 2009 NY Slip Op 02565 (App. Div., 2nd, 2009)

Counsel for the parties then entered into a stipulation allowing
Santoli to amend her answer to assert a counterclaim against Edward
Lipiner, and she thereafter asserted a counterclaim against Edward
Lipiner for contribution and indemnification. However, Edward Lipiner
then moved to dismiss the counterclaim and the third-party complaint
pursuant to CPLR 3211(a)(5) as barred by the general release. The
Supreme Court denied the motion without an explanation. We reverse.

The general release executed by Santoli is neither vague nor
ambiguous, and it releases Edward Lipiner from "all actions, causes of
action, suits . . . damages, judgments . . . . whatsoever from the
beginning of the world to the day of the date of this Release." It is
also undisputed that Santoli was represented by counsel at the time of
the release and that she "willingly" executed the release. Moreover, at
the time of the execution of the release, this action had been
commenced and the third-party complaint, which also sought contribution
and indemnification, had been interposed.

Under these facts and circumstances, Santoli's unsubstantiated
allegation that she did not intend the release to bar her
contribution/indemnification claim against Edward Lipiner was
insufficient to defeat the motion to dismiss (see General Obligations Law § 15-108[a], [c]; Barry v Hildreth, 9 AD3d 341; Touloumis v Chalem, 156 AD2d 230; see also McNally v Corwin, 30 AD3d 482; cf., Tarantola v Williams, 48 AD2d 552).

CPLR R. 3211(a)(7)

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(a)(7)

Hauff v Listemann, 2009 NY Slip Op 02561(App. Div., 2nd, 2009)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must
be afforded a liberal construction, the facts therein must be accepted
as true, and the plaintiff must be accorded the benefit of every
favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88).
The court's function on such a motion is only to determine whether the
facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88).

CPLR R. 2106

CPLR R. 2106

Fung v Uddin, 2009 NY Slip Op 02560 (App. Div., 2nd, 2009)

Furthermore, the affirmation of the plaintiff's
former treating physician, Jeffrey Schwartz, was without probative
value because he was no longer licensed to practice medicine at the
time the affirmation was written (see CPLR 2106; Worthy v Good Samaritan Hosp. Med. Ctr., 50 AD3d 1023, 1024; McDermott v New York Hosp.-Cornell Med. Ctr., 42 AD3d 346).

CPLR R. 4518

CPLR R. 4518 Business records

Cheul Soo Kang v Violante, 2009 NY Slip Op 02558 (App. Div., 2nd, 2009)

The trial court erred in admitting a police accident report into
evidence. The report did not qualify for admission pursuant to CPLR
4518(c) because it was not certified, and no foundation testimony
establishing its authenticity and accuracy was offered (see DeLisa v Pettinato, 189 AD2d 988; Matter of Peerless Ins. Co. v Milloul,
140 AD2d 346). Furthermore, the statements in the report attributed to
the plaintiff and defendant driver constituted inadmissable hearsay (see Carr v Burnwell Gas of Newark, Inc., 23 AD3d 998, 1000; Hatton v Gassler, 219 AD2d 697). The error cannot be considered harmless.