Gamesmanship

Cram v Keller, 2018 NY Slip Op 08007 [2d Dept. 2018]

While defense counsel has the right to hold the plaintiff to the burden of proof on disputed issues, here, the record shows that the defendants’ ownership of the property was never genuinely disputed. In fact, Keller explicitly admitted in a portion of his deposition testimony not read by the plaintiff at trial that he and his wife owned the property. Defense counsel successfully objected to the reading of this testimony despite the lack of any apparent good faith basis in which to do so, making this an exercise in gamesmanship. The defendants did not offer any evidence at trial to dispute their ownership of the property. At an early stage of the case, the defendants submitted an answer to the complaint in which they denied having knowledge or information sufficient to form a belief as to the truth of the plaintiff’s allegation of the defendants’ ownership of the subject property. While the answer was verified by counsel, it is difficult to accept the denial of information sufficient to form a belief as to ownership as having been asserted in good faith, as there is no reason to believe that the defendants did not know that they owned the property, given that Keller admitted at his deposition that he and his wife owned the property. While the defendants did not amend their answer after Keller’s deposition, plaintiff’s counsel knew that the defendants did not dispute ownership and defense counsel knew that as well. Under the circumstances of this case, the defendants’ posttrial motion to set aside the verdict, to the extent predicated on the issue of ownership, was frivolous, given the evidence presented by the plaintiff at trial, the failure of the defendants to offer any contrary evidence at trial, the known fact that the defendants owned the property, the lack of good faith underlying the denial of ownership appearing in the defendants’ answer, and the lack of a good faith basis for the exclusion of the additional deposition testimony that would have eliminated any doubt on the issue of ownership.

22 NYCRR 202.48

Solomon v Burden, 2018 NY Slip Op 07480 [2d Dept. 2018]

The plaintiffs made a second motion for an order of reference. The Supreme Court denied this motion without prejudice, finding that the plaintiffs abandoned their motion for an order of reference since they failed to submit the order of reference within 60 days after the signing and filing of the order directing submission, without showing good cause for their failure, in violation of 22 NYCRR 202.48(a). The plaintiffs then moved, inter alia, in effect, to extend the time to submit an order of reference, and for an order of reference. In the order appealed from, the court granted those branches of the plaintiffs’ motion, excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order.

” It is within the sound discretion of the court to accept a belated order or judgment for settlement'” (Curanovic v Cordone, 134 AD3d 978, 979, quoting Russo v Russo, 289 AD2d 467, 468; see Dime Sav. Bank of N.Y. v Anzel, 232 AD2d 446). “Moreover, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources'” (Curanovic v Cordone, 134 AD3d at 979, quoting Meany v Supermarkets Gen. Corp., 239 AD2d 393, 394; see Zaretsky v Ok Hui Kim, 17 AD3d 455, 456; Matter of Argento v New York State Div. of Hous. & Community Renewal, 269 AD2d 443, 444; Crawford v Simmons, 226 AD2d 667).

Here, under the particular facts of this case, the interests of justice dictate that the court not be burdened with a trial where liability is certain. To hold otherwise would be contrary to the intent of 22 NYCRR 202.48 and would lead to a waste of judicial resources (see Russo v City of New York, 206 AD2d 355, 356). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to extend their time to submit an order of reference.

The Supreme Court also did not violate the law of the case doctrine in excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order. Generally, a plaintiff in a foreclosure action who is awarded summary judgment on the complaint is entitled to an order of reference appointing a referee (see e.g. Citibank, N.A. v Gentile, 156 AD3d 859). Consequently, the court’s original direction, made after the plaintiffs had already been awarded summary judgment, that supporting documents be submitted along with an order of reference was a discretionary ruling to which the law of the case doctrine does not apply (see Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511; Latture v Smith, 304 AD2d 534; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765).

 

Appeal from Judgment: 5501

Anderson & Anderson LLP-Guangzhou v North Am. Foreign Trading Corp., 2018 NY Slip Op 06971 [1st Dept. 2018]

The February 2017 order, which denied plaintiffs’ motion to vacate an October 2014 order that disqualified counsel for plaintiffs, and the September 2017 order, which denied plaintiffs’ motion for leave for West to appear as counsel, are not brought up for review by the instant appeal from the judgment, because they do not “necessarily affect[] the final judgment” (see CPLR 5501[a][1]; Paul v Cooper, 100 AD3d 1550, 1552 [4th Dept 2012], lv denied 21 NY3d 855 [2013]). However, the November 2016 order, which granted defendant’s motion to vacate the note of issue and denied plaintiffs’ motion for summary judgment, is reviewable, because, if reversed, it could be dispositive (see CPLR 5501[a][1]; Siegmund Strauss, Inc. v East 149th Realty Corp., 20 NY3d 37, 41-43 [2012]).

Vacatur

2004 McDonald Ave. Corp. v KGYM Holdings Group, Inc.,  2018 NY Slip Op 06508 [2d Dept. 2018]

CPLR 317 applies where a defendant was served by means other than personal delivery, did not receive notice of the action, and has a potentially meritorious defense (see Booso v Tausik Bros. LLC., 148 AD3d 1108). Here, the defendants claimed they were never served. Therefore, they sought to vacate the default judgment against them pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction. On this point, the affidavit of service of a process server generally constitutes prima facie evidence of proper service (see US Bank N.A. v Ramos, 153 AD3d 882Central Mtge. Co. v Ward, 127 AD3d 803). In this case, however, the process server submitted affidavits of exercising due diligence to attempt service, not affidavits of service.

If service is not made, the default judgment is a nullity (see Ariowitsch v Johnson, 114 AD2d 184). If a defendant is not served, “notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241).

Sposito v Cutting, 2018 NY Slip Op 06782 [2d Dept. 2018]

“As a general rule, a defendant who seeks to vacate a default in appearing at a compliance conference is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense” (Foley Inc. v Metropolis Superstructures, Inc., 130 AD3d 680, 680; see Polsky v Simon, 145 AD3d 693). Here, the defendant demonstrated a reasonable excuse for his failure to appear at the compliance conference on November 29, 2016, including the fact that he had been hospitalized from mid-September to late October 2016 for injuries sustained in a fall. In addition, notice of the conference was sent to the subject property and, although the defendant’s grandson resided there, it was never the defendant’s residence and the defenedant denied any knowledge of the November 29, 2016, conference. The defendant also demonstrated that he did not receive notice of the adjourned conference date of January 24, 2017, and the record is devoid of any evidence demonstrating that such notice was, in fact, given to him. Under such circumstances, the defendant’s nonappearance for the conference on January 24, 2017, could not constitute a default, as there was no failure to perform a legal duty (see Notaro v Performance Team, 161 AD3d 1093Foley Inc. v Metropolis Superstructures, Inc., 130 AD3d at 681). “This is analogous to the situation of a defendant who has not been served with process and suffers a default judgment. In both situations, the default’ is a nullity along with the remedy the court renders in response” (Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376). As the defendant’s default in appearing at the conference on January 24, 2017, is considered a nullity, vacatur of that default ” is required as a matter of law and due process, and no showing of a potentially meritorious defense is required'” (Notaro v Performance Team, 161 AD3d at 1095, quoting Bonik v Tarrabocchia, 78 AD3d 630, 632; see Matter of 542 A Realty, LLC, 118 AD3d 993, 994; Pavlou v Associates Food Stores, Inc., 96 AD3d 919). Therefore, the Supreme Court should have vacated the default and the notice of inquest as a matter of law and due process, and no showing of a potentially meritorious defense was required.

In addition, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the note of issue and certificate of readiness. Since the defendant moved for such relief more than 20 days after service of the note of issue and certificate of readiness, he had to show good cause for vacatur (see 22 NYCRR 202.21[e]). “To satisfy the requirement of good cause,’ the party seeking vacatur must demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice'” (Ferraro v North Babylon Union Free School Dist., 69 AD3d 559, 561, quoting White v Mazella-White, 60 AD3d 1047, 1049 [internal quotation marks omitted]). Here, for the reasons set forth above, particularly that the defendant’s failure to appear at the conference on January 24, 2017, did not constitute a default and warranted vacatur of the default and the notice of inquest as a matter of law and due process, the defendant established good cause for vacating the note of issue and certificate of readiness.

Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 5015(a)(1) to, in effect, vacate his default in appearing for two scheduled court conferences

Rosario v Naranjo, 2018 NY Slip Op 06780 [2d Dept. 2018]

A defendant seeking to vacate a default in appearing or answering the complaint pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 141; Goldfarb v Zhukov, 145 AD3d 757, 758; Li Fen Li v Cannon Co., Inc., 155 AD3d 858, 859). “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877; see Gomez v Gomez-Trimarchi, 137 AD3d 972, 973).

A.G. Parker, Inc. v 246 Rochester Partners, LLC, 2018 NY Slip Op 06711 [2d Dept. 2018]

A party is precluded from moving to vacate its default on grounds asserted in a prior motion to vacate the default that had been previously denied in an order from which it took no appeal as well as on grounds that were apparent at the time that the party made the prior motion but were not asserted therein (see U.S. Bank N.A. v Davis, 161 AD3d 808LaSalle Natl. Bank Assn. v Odato, 126 AD3d 675, 676; Eastern Sav. Bank, FSB v Brown, 112 AD3d 668, 670; Lambert v Schreiber, 95 AD3d 1282, 1283; Bianco v Dougherty, 54 AD2d 681).

Itshaik v Singh, 2018 NY Slip Op 06888 [2d Dept. 2018]

“When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)” (Canelas v Flores, 112 AD3d 871, 871; see Community W. Bank, N.A. v Stephen, 127 AD3d 1008, 1009; HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045). A defendant moving to vacate a judgment entered upon his or her default in appearing or answering the complaint on the ground of lack of personal jurisdiction “is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense” (Prudence v Wright, 94 AD3d 1073, 1073; see Falvo v Cerra, 127 AD3d 919, 920). “[T]he failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889 [internal quotation marks omitted]).

Here, through his submissions, the defendant established that the Supreme Court did not acquire personal jurisdiction over him (see CPLR 5015[a][4]). The plaintiff contends that the defendant was estopped from challenging service upon him at the West End Avenue address pursuant to Vehicle and Traffic Law § 505(5), which requires that every motor vehicle licensee notify the Commissioner of the DMV of any change in residence within 10 days of the change and make a notation of such change of residence on the license. However, under the circumstances of this case, where the defendant did not provide the West End Avenue address at the time of the accident, where the record does not contain a DMV driver’s abstract for the defendant, and where the plaintiff identified the motor vehicle allegedly involved in this accident as belonging to a neighbor, the plaintiff’s contention is without merit (cf. Canelas v Flores, 112 AD3d at 871-872). Accordingly, we agree with the Supreme Court’s granting of the defendant’s motion to vacate the order dated July 11, 2016, and for leave to serve a late answer, based on lack of jurisdiction (see CPLR 5015[a][4]; Falvo v Cerra, 127 AD3d at 920).

In light of our determination of the jurisdictional issue, we need not reach the parties’ contentions regarding a discretionary vacatur pursuant to CPLR 5015(a)(1). Moreover, the parties’ contentions regarding CPLR 317, which were not raised before the Supreme Court, are not properly before this Court.

CPLR 5015 (repeated neglect and not so repeated neglect)

Zovko v Quittner Realty, LLC, 2018 NY Slip Op 04775 [2d Dept 2018]

A defendant seeking to vacate an order awarding a default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 5015[a][1]; Skutelsky v JN Natural Fruit Corp., 138 AD3d 1099, 1100; Orwell Bldg. Corp. v Bessaha, 5 AD3d 573, 574; Quis v Bolden, 298 AD2d 375). The defendant failed to demonstrate a reasonable excuse for its default. The defendant's mistaken belief that its insurer would provide a defense and answer the summons and complaint on its behalf was unreasonable given its insurer's reservation of rights letter and request for a copy of any summons served upon the defendant, and the plaintiffs' motion for leave to enter a default judgment (see Medas v Rochpark Realty, LLC, 150 AD3d 1221, 1223; Spitzer v Landau, 104 AD3d 936, 936-937; Trepel v Greenman-Pedersen, Inc., 99 AD3d 789, 791; Jackson v Professional Transp. Corp., 81 AD3d 602, 603; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672). Furthermore, this alleged mistake was not an isolated error, but part of a pattern of "repeated neglect" (Roussodimou v Zafiriadis, 238 AD2d 568, 569; see Wells Fargo Bank, N.A. v Krauss, 128 AD3d 813, 814; Alterbaum v Shubert Org., Inc., 80 AD3d 635, 636; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 518). In this regard, the defendant was aware of the default order, but took no steps to vacate the default until five months after its insurer disclaimed coverage (see Wells Fargo Bank, N.A. v Krauss, 128 AD3d at 815; Miller v Ateres Shlomo, LLC, 49 AD3d 612, 613; Thompson v Steuben Realty Corp., 18 AD3d 864, 865; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716, 716-717). Since the defendant failed to demonstrate a reasonable excuse for its default, we need not reach the issue of whether it demonstrated the existence of a potentially meritorious defense (see Medas v Rochpark Realty, LLC, 150 AD3d at 1223; Jing Shan Chen v R & K 51 Realty, Inc., 148 AD3d 689, 691; Bernstein v Geiss, 111 AD3d 774, 775).

New York Vein Ctr., LLC v Dovlaryan, 2018 NY Slip Op 04744 [2d Dept 2018]

In seeking to vacate their defaults in appearing at a compliance conference and in opposing the plaintiff's motion to strike their answer, the defendants were required to demonstrate both a reasonable excuse for their defaults and a potentially meritorious defense (see CPLR 5015[a][1]; 22 NYCRR 202.27[a]; 555 Prospect Assoc., LLC v Greenwich Design & Dev. Group Corp., 154 AD3d 909Prudence v White, 144 AD3d 655, 656). The defendants failed to establish a reasonable excuse for their failure to (1) appear at the compliance conference, (2) oppose the plaintiff's motion to strike their answer, (3) respond to their former attorney's motion to withdraw as counsel, and (4) appear at the inquest on the issue of damages. Moreover, the record shows that the defendants took no steps to ascertain the status of this case for a period of more than two years. Furthermore, where, as here, there is a pattern of default and neglect, the negligence of the defendants' former attorney is properly imputed to the client (see Carillon Nursing & Rehabilitation Ctr., LLP v Fox, 118 AD3d 933, 934; Santiago v Santana, 54 AD3d 929, 930; Dave Sandel, Inc. v Specialized Indus. Servs. Corp., 35 AD3d 790, 791; Edwards v Feliz, 28 AD3d 512, 513; MRI Enters. v Amanat, 263 AD2d 530, 531). Since the defendants failed to demonstrate a reasonable excuse for their defaults, we need not reach the issue of whether they demonstrated the existence of a potentially meritorious defense to the action or the plaintiff's motion to strike their answer (see Bernstein v Geiss, 111 AD3d 774, 775).

Lee v Latendorf, 2018 NY Slip Op 04709 [2d Dept. 2018]

In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see CPLR 5015[a][1]; Stein v Doukas, 157 AD3d 743, 744; One West Bank, FSB v Singer, 153 AD3d 714, 715; Gallery v Messerschmitt, 151 AD3d 940Wright v City of Poughkeepsie, 136 AD3d 809). "A determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court" (Stein v Doukas, 157 AD3d 743, 744). Although a court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005), "a pattern of willful default and neglect should not be excused" (Prudence v White, 144 AD3d 655, 656; see Whitestone Constr. Corp. v Nova Cas. Co., 129 AD3d 831, 832). A claim of law office failure must be supported by a detailed and credible explanation of the default at issue, as mere neglect is not a reasonable excuse (see Ki Tae Kim v Bishop, 156 AD3d 776One West Bank, FSB v Singer, 153 AD3d at 716; Onishenko v Ntansah, 145 AD3d 910).

Here, the Supreme Court providently exercised its discretion in determining that the plaintiffs did not offer a reasonable excuse for their default. The excuse proffered by the plaintiffs' former attorney, that he failed to appear at the May 19, 2015, conference due to a malfunctioning GPS system and that he "got lost," was unreasonable under the circumstances, as it was not a detailed and credible explanation for the claimed law office failure. Moreover, the plaintiffs failed to set forth any excuse, let alone a reasonable one, for their former attorney's failure to appear at the compliance conference scheduled for February 18, 2015, or why he arrived late for the adjourned conference on February 26, 2015.

Since the plaintiffs failed to offer a reasonable excuse for their default, the issue of whether they had a potentially meritorious cause of action need not be addressed (see Stein v Doukas, 157 AD3d 743Ki Tae Kim v Bishop, 156 AD3d 776).

Chase Manhattan Bank v Nath, 2018 NY Slip Op 04695 [2d Dept 2018]

Moreover, the defendant's contention that the plaintiff fraudulently obtained the judgment of foreclosure and sale by making false allegations in the complaint about its standing and capacity to commence the action and by submitting fraudulent documents to the court amount to an allegation of intrinsic fraud (see PennyMac Corp. v Weiss, 152 AD3d 712, 714; US Bank N.A. v Galloway, 150 AD3d 1174, 1175; U.S. Bank, N.A. v Peters, 127 AD3d 742, 742-743). The defendant failed to provide any evidence of fraud, mistake, inadvertence, surprise, or excusable neglect that would constitute a basis for vacatur of the judgment of foreclosure and sale in the interests of substantial justice (see Wells Fargo Bank Minn., N.A. v Coletta, 153 AD3d 757, 758).

In addition, lack of standing and lack of capacity are not defects that deprive a court of subject matter jurisdiction for purposes of CPLR 5015(a)(4) (see Behringer v 19407 Linden, LLC, 139 AD3d 777, 778; Mortgage Elec. Registration Sys., Inc. v Gifford, 133 AD3d 429, 430-431; Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980, 983; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239). In any event, the defendant waived these defenses by failing to assert them in his answer or a pre-answer motion to dismiss (see Bank of Am., N.A. v Cudjoe, 157 AD3d 653Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176, 1177; Security Pac. Natl. Bank v Evans, 31 AD3d 278, 280).

Additionally, the defendant failed to demonstrate his entitlement to vacatur pursuant to CPLR 5015(a)(2) based on newly discovered evidence. Even if the evidence proffered was new within the meaning of the statute, the defendant failed to establish that the newly discovered evidence probably would have produced a different result (see Bank of N.Y. v Tobing, 155 AD3d 596, 596; US Bank N.A. v Galloway, 150 AD3d at 1175; IMC Mtge. Co. v Vetere, 142 AD3d 954, 955; Washington Mut. Bank v Wade, 119 AD3d 930, 931).

The bold is mine.

Abandoned: 22 NYCRR 202.48

JP Morgan Chase Bank, N.A. v Atedgi, 2018 NY Slip Op 04315 [2d Dept 2018]

In April 2013, the plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The appellants opposed the motion. By decision dated July 1, 2013, the Supreme Court granted the motion and directed the plaintiff to "settle order." The decision was filed with the Queens County Clerk on July 9, 2013. Atedgi subsequently sought to have the plaintiff's motion deemed abandoned pursuant to 22 NYCRR 202.48(b) on the ground that the plaintiff failed to submit its proposed order for signature within 60 days after the July 1, 2013, decision was filed, as required by 22 NYCRR 202.48(a). The court rejected Atedgi's request. Thereafter, the plaintiff submitted its proposed order, and the court signed it on September 15, 2015. This appeal is from so much of the order dated September 15, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellants and for an order of reference.

***

Contrary to the appellants' contention, under the circumstances of this case the Supreme Court providently exercised its discretion in declining to deem the plaintiff's motion abandoned pursuant to 22 NYCRR 202.48 (see Curanovic v Cordone, 134 AD3d 978, 979-980; Russo v City of New York, 206 AD2d 355).

22 NYCRR 202.48 [60 day rule]

22 NYCRR 202.48

47 Thames Realty, LLC v Robinson, 2014 NY Slip Op 06051 [2nd Dept. 2014]

22 NYCRR 202.48, entitled "[s]ubmission of orders, judgments and decrees for signature," states in pertinent part:

"(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted. "(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown."

Here, the so-called 60-day rule set forth in 22 NYCRR 202.48 is not applicable because the Supreme Court's direction that the defendants submit a proposed order with respect to an award of an attorney's fee did not specify that the proposed order be settled or submitted on notice (see Farkas v Farkas, 11 NY3d 300, 309; Shamshovich v Shvartsman, 110 AD3d 975, 976-977; Matter of Village of Dobbs Ferry v Stanley Ave. Props., Inc., 95 AD3d 1027

Medical Reports: 22 NYCRR 202.17 [Ct. App.]

CPLR 3121(a)

CPLR 3101

CPLR 4411

22 NYCRR 202.17(b)(1)

Hamilton v Miller, 2014 NY Slip Op 04230 [2014]

In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.

This case is more complicated. Plaintiffs allegedly suffered lead poisoning as children. Now adults, plaintiffs allege that their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17 (b) (1).

Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who have "previously treated or examined" them. They argue that they are not required to document or create medical evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree. Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR 202.17 (b) (1) could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits. Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor. Plaintiffs therefore need only produce reports from medical providers who have "previously treated or examined" them.

To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and examining medical providers — the reports "shall include a recital of the injuries and conditions as to which testimony will be offered at the trial" (22 NYCRR 202.17 [b] [1]) [emphasis added]). Plaintiffs therefore cannot avoid disclosure simply because their treating or examining medical providers have not drafted any reports within the meaning of rule 202.17 (b) (1) (see Ciriello v Virgues, 156 AD2d 417, 418 [2d Dept 1989] ["[T]he fact that a report never was prepared does not obviate the party's obligation under the rules"]; Davidson v Steer/Peanut Gallery, 277 AD2d 965, 965 [4th Dept 2000]; Pierson v [*3]Yourish, 122 AD2d 202, 203 [2d Dept 1986]). If plaintiffs' medical reports do not contain the information required by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.)[FN2]. If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule (see 22 NYCRR 202.17 [j]).

We conclude therefore that Supreme Court abused its discretion in requiring plaintiffs to provide medical evidence ofeach alleged injury or otherwise be precluded from offering evidence of that injury at trial. Supreme Court's motivation for granting that relief is understandable. Plaintiffs' counsel filed boilerplate bills of particulars and then did not disclose medical records substantiating the alleged injuries. To that end, plaintiffs should amend their respective bills of particulars to reflect those injuries actually sustained. Nonetheless, although Supreme Court had wide, inherent discretion to manage discovery, foster orderly proceedings, and limit counsel's gamesmanship (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]), the ordered relief exceeded the court's power.

Supreme Court also granted relief beyond that contemplated by rule 22 NYCRR 202.17 (b) (1) by requiring plaintiffs to produce, prior to the defense examination, a medical report causally relating plaintiffs' injuries to lead paint exposure or be precluded from offering proof of such injuries at trial. The rule requires that the medical reports "include a recital of the injuries and the conditions as to which testimony will be offered at the trial, . . . including a [*4]description of the injuries, a diagnosis, and a prognosis." There is no requirement that medical providers causally relate the injury to the defendant's negligence or, in this case, the lead paint exposure.

If determining causation requires evidence from a medical professional, causation is more appropriately dealt with at the expert discovery phase and pursuant to CPLR 3101 (d). If defendants wish to expedite expert discovery, they can move in Supreme Court for amendment of the scheduling orders. Should plaintiffs fail to produce any evidence of causation, then defendants can move for and obtain summary judgment.

Supreme Court properly denied plaintiff Hamilton's CPLR 4511 motion to take judicial notice of 42 USC § 4851. That provision contains Congress's findings justifying legislation aimed at reducing lead — findings such as: "at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity, and behavior problems;" and "the Federal Government must take a leadership role in building the infrastructure—including an informed public, State and local delivery systems, certified inspectors, contractors, and laboratories, trained workers, and available financing and insurance—necessary to ensure that the national goal of eliminating lead-based paint hazards in housing can be achieved as expeditiously as possible" (42 USC § 4851 [2], [8]). Hamilton apparently sought judicial notice of the federal provision in order to avoid having to prove general causation — that lead paint exposure can cause some or all of his alleged injuries.

CPLR 4511 allows a court to take notice of federal and foreign state law, not facts, that is relevant to a proceeding (CPLR 4511; Pfleuger v Pfleuger, 304 NY 148, 151 [1952]). The congressional findings in support of legislation seeking to reduce amounts of lead in homes, though codified in a federal statute, are not "law" that is relevant to Hamilton's case. Taking judicial notice of them under CPLR 4511 would be inappropriate.

What Hamilton really wanted was to have Supreme Court take judicial notice of the fact that exposure to lead paint can cause injury. "To be sure, a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy" (People v Jones, 73 NY2d 427, 431 [1989] [internal quotation marks omitted]). But general causation, at least in scientifically complex cases, is not such a fact. Hamilton needs to prove, through scientific evidence, that exposure to lead-based paint can cause the injuries of which he complains (see Parker v Mobile Oil Corp., 7 NY3d 434, 448 [2006]). He cannot avoid that burden simply because Congress, in statutory preambles, has opined on the dangers of lead-based paint.Accordingly, in each case, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further [*5]proceedings in accordance with this opinion and, as so modified, affirmed, and the certified question answered in the negative.

Motion to strike. Motion to quash

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3101 Scope of disclosure

Jacobs v Johnston, 2012 NY Slip Op 05390 (2nd Dept. 2012)

Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21(e), and clearly demonstrated that the case was not ready for trial, that branch of the defendant's motion which was to vacate the note of issue and, in effect, to compel the deposition of a nonparty witness should have been granted (see CPLR 2103[b][2]; Gallo v SCG Select Carrier Group, L.P., 91 AD3d 714; Tirado v Miller, 75 AD3d 153, 157). Furthermore, since the defendant timely moved to vacate the note of issue, he was required only to demonstrate why the case was not ready for trial, and was not required to establish that additional discovery was necessary because unusual or unanticipated circumstances had developed subsequent to the filing of the note of issue (see 22 NYCRR 202.21[d], [e]; Mosley v Flavius, 13 AD3d 346; Rizzo v DeSimone, 287 AD2d 609, 610; Perla v Wilson, 287 AD2d 606; Audiovox Corp. v Benyamini, 265 AD2d 135, 139).

In opposition to the plaintiff's cross motion to quash the subpoena served by the defendant upon the nonparty witness, the defendant demonstrated, inter alia, that the disclosure sought was relevant, material, and necessary to the defense of the action (see CPLR 3101[a][4]; Kondratick v Orthodox Church in Am., 73 AD3d 708, 709; Tenore v Tenore, 45 AD3d 571, 571-572; [*2]Thorson v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper, Inc., 249 AD2d 374). Contrary to the plaintiff's contention, the defendant did not waive his right to seek discovery from the nonparty witness by failing to raise an objection with respect thereto at the certification conference. Since the identity of the nonparty witness was not made known to the defendant until after the date of the certification conference, and the defendant timely moved to vacate the note of issue, the defendant could not be deemed to have waived his right to compel the nonparty witness to comply with the subpoena and to appear for a deposition (cf. Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544; James v New York City Tr. Auth., 294 AD2d 471, 472). Accordingly, the plaintiff's cross motion to quash the subpoena should have been denied.

 

Sanctions and Contempt (civil and criminal)

Visual Arts Found., Inc. v Egnasko, 2012 NY Slip Op 00646 (1st Dept., 2012)

The motion court improperly denied plaintiff's request for sanctions in its entirety. The court is directed to conduct a hearing to quantify the damages that plaintiff incurred from those [*2]aspects of defendants' litigation conduct that were "frivolous," including, impending discovery, the filing of meritless counterclaims and conduct which was "undertaken primarily to delay or prolong the resolution of the litigation" (22 NYCRR 130-1.1[c][2]). We note that, as Louis Egnasko is presently incarcerated, the hearing may be conducted through written submissions (see 22 NYCRR 130-1.1[d]).

Pentalpha Enters., Ltd. v Cooper & Dunham LLP, 2012 NY Slip Op 00044 (1st Dept., 2012)

Plaintiffs now appeal, having lost in no fewer than four courts of competent jurisdiction, and despite having been warned in the court below that any further prosecution of this matter [*2]would be dangerously close to sanctionable conduct. We are of the opinion that plaintiffs' appeal must, again, be denied on the merits; and that, with this appeal, the conduct of plaintiffs and their attorneys has crossed the line from zealous advocacy to that which is sanctionable under 22 NYCRR 130-1.1.

Commissioners of State Ins. Fund v Kernell, 2012 NY Slip Op 00482 (2nd Dept., 2012)

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his motion which was to hold the plaintiff's counsel in civil contempt. "In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect," and "[i]t must appear, with reasonable certainty, that the order has been disobeyed" (Matter of McCormick v Axelrod, 59 NY2d 574, 583; see Rubin v Rubin, 78 AD3d 812, 813). In this case, there was no order of the court in effect, expressing an unequivocal mandate, which the plaintiff's counsel disobeyed. Accordingly, the Supreme Court properly denied that branch of the defendant's motion (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130, 1130-1131).

The Supreme Court improvidently exercised its discretion, however, in denying that branch of the defendant's motion which was to impose sanctions upon the plaintiff and its counsel pursuant to 22 NYCRR 130-1.1. The defendant demonstrated that the plaintiff and its counsel engaged in frivolous conduct in that they either did not have the necessary documentation upon which to formulate or support a meritorious claim, or, being in possession of the documentation, knew or should have known, based upon prior litigation and correspondence from the defendant, that the plaintiff's claim was completely without merit in law. Under the circumstances, we deem it [*2]appropriate to impose sanctions upon the plaintiff in the sum of $2,500, and upon the plaintiff's counsel in the sum of $1,000 (see 22 NYCRR 130-1.1), payable pursuant to 22 NYCRR 130-1.3.

HSBC Mtge. Corp. v Oberlander, 2012 NY Slip Op 00335 (2nd Dept., 2012)

"A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court" (Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946; see Educational Reading Aids Corp. v Young, 175 AD2d 152). "In order to prevail on such a motion, the moving party must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the moving party's rights" (Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626, 626; see McCain v Dinkins, 84 NY2d 216, 226; Chambers v Old Stone Hill Rd. Assoc., 66 AD3d at 946; Matter of Rothschild v Edwards, 63 AD3d 744, 745; Galanos v Galanos, 46 AD3d 507, 508; Rienzi v Rienzi, 23 AD3d 447, 449).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying that branch of the motion of the defendant David Oberlander which was to hold the plaintiff and its attorneys in civil contempt for transferring title to the subject real property while a stay pending the hearing and determination of an appeal was in effect. Oberlander failed to meet his burden so as to warrant holding the plaintiff and its attorneys in civil contempt.

Town Bd. of Town of Southampton v R.K.B. Realty, LLC, 2012 NY Slip Op 00200 (2nd Dept., 2012)

"To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect," that "the order has been disobeyed," and that the charged party "had knowledge of the court's order" (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240; see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d 1308, 1309). The same act may be punishable as both a criminal and civil contempt (see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d at 1309). Civil contempt must be proven by clear and convincing evidence and requires a showing that the rights of a party have been prejudiced (see McCain v Dinkins, 84 NY2d 216, 226; Incorporated Vil. of Plandome Manor v Ioannou, 54 AD3d 365, 366). Such a showing is not needed to prove criminal contempt "since the right of the private parties to the litigation is not the controlling factor" (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d at 240). "A key distinguishing element between civil and criminal contempt is the degree of willfulness of the subject conduct. To be found guilty of criminal contempt, the contemnor usually must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding" (id.; McCain v Dinkins, 84 NY2d at 226; Dalessio v Kressler, 6 AD3d 57, 66). Moreover, criminal contempt must be proven beyond a reasonable doubt (see Muraca v