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.

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.

 

(Restored): 202.21 and 202.27. A peculiar set of facts.

22 NYCRR 202.21 Note of issue and certificate of readiness

22 NYCRR 202.27 Defaults

Soo Ji Kim v Seney, 2012 NY Slip Op 00774 (2nd Dept., 2012)

On January 25, 2010, the Supreme Court struck the action from the trial calendar after the plaintiff appeared for the calendar call but was not ready for trial. There was no order vacating the note of issue pursuant to 22 NYCRR 202.21(e). Accordingly, contrary to the defendant's contention, in moving to restore the action to the trial calendar, the plaintiff was not required to submit a certificate of readiness or show that the case was ready for trial (see 22 NYCRR 202.21[f]; Ross v Brookdale Univ. Hosp. & Med. Ctr., 54 AD3d 370, 371). Furthermore, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic (see CPLR 3404; Ross v Brookdale Univ. Hosp. & Med. Ctr., 54 AD3d at 371; Kohn v Citigroup, Inc., 29 AD3d 530, 532; Basetti v Nour, 287 AD2d 126, 133-134).

Moreover, after the matter was stricken from the trial calendar, there was no order [*2]dismissing the action pursuant to 22 NYCRR 202.27 (see Mitskevitch v City of New York, 78 AD3d 1137, 1138; Casavecchia v Mizrahi, 62 AD3d 741, 742; Burdick v Marcus, 17 AD3d 388). Accordingly, the plaintiff's motion to reinstate the note of issue should have been granted, and, upon renewal and reargument, the plaintiff's motion to restore the action to the trial calendar should have been granted.

Disclosure, lots of it

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

CPLR § 4504. Physician, dentist, podiatrist, chiropractor and nurse

CPLR R. 3120 Discovery and production of documents and things for inspection, testing, copying or photographing

CPLR § 3101 Scope of disclosure

CPLR R. 3124 Failure to disclose; motion to compel disclosure

22 NYCRR 202.21 Note of issue and certificate of readiness

Congel v Malfitano, 2011 NY Slip Op 04406 (App. Div., 2nd 2011)

Contrary to the defendant's contentions, the Supreme Court providently exercised its discretion in denying that branch of his cross motion which was for leave to amend his answer to assert counterclaims pursuant to Partnership Law §§ 73 and 74. Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b]), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see Brooks v Robinson, 56 AD3d 406, 407; Scofield v DeGroodt, 54 AD3d 1017, 1018; Lucido v Mancuso, 49 AD3d 220, 227). Here, the defendant's proposed amended counterclaims were patently devoid of merit.

CPLR 3101(a) provides for, inter alia, "full disclosure of all matter material and necessary in the prosecution or defense of an action." Although the phrase "material and necessary" must be "interpreted liberally" in favor of disclosure so long as the information sought meets the test of "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69-70), a party does not have the right to uncontrolled and unfettered disclosure (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408, 410; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531). Further, the Supreme Court has broad discretion over the supervision of disclosure, and its determination will not be disturbed absent an improvident exercise of discretion (see Spodek v Neiss, 70 AD3d 810, 810; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694, 695; Cabellero v City of New York, 48 AD3d 727, 728).

On the defendant's prior appeal, this Court remitted the matter to the Supreme Court, Dutchess County, for, inter alia, further proceedings on the issue of damages caused to the plaintiffs by the defendant's wrongful dissolution of the Poughkeepsie Galleria Company Partnership, as well as a determination of the value of the defendant's interest in that partnership at the time of the wrongful dissolution (see Congel v Malfitano, 61 AD3d 810; Partnership Law § 69[2][c][II]). Given that the remaining issues to be resolved in this matter are narrow (see Partnership Law § 69[2][c][II]), the Supreme Court did not improvidently exercise its discretion in limiting the scope of discovery and providing for an expedited discovery schedule.

Thompson v Dallas BBQ, 2011 NY Slip Op 04451 (App. Div., 2nd 2011)

Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed'" (Mazza v Seneca, 72 AD3d 754, 754, quoting CPLR 3126). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126[3]; Kihl v Pfeffer, 94 NY2d 118, 122-123; Bernal v Singh, 72 AD3d 716). The drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands is willful and contumacious (see CPLR 3126[3]; Kyung Soo Kim v Goldmine Realty, Inc., 73 AD3d 709; Moray v City of Yonkers, 72 AD3d 766).

Here, there was no such clear showing that the defendants' conduct was willful and contumacious (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to strike the defendants' answer.

Gille v Long Beach City School Dist., 2011 NY Slip Op 04202 (App. Div., 2nd 2011)

While it is unclear whether the school district negligently lost or intentionally destroyed key evidence (see Denoyelles v Gallagher, 40 AD3d 1027; Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343), it is uncontested that the school district is unable to locate the window shade, the very instrumentality giving rise to the infant plaintiff's injuries. However, because the determination of spoliation sanctions is within the broad discretion of the trial court (see Iamiceli v General Motors Corp., 51 AD3d 635; Barnes v Paulin, 52 AD3d 754; Dennis v City of New York, 18 AD3d 599), the matter must be remitted to the Supreme Court, Nassau County, for its determination of the cross motion on the merits (see American Fed. of School Adm'rs, AFL-CIO v Council of Adm'rs & Supervisors, 266 AD2d 417, 418; Polera Bldg. Corp. v New York School Constr. Auth., 262 AD2d 295).

Lopez v Retail Prop. Trust, 2011 NY Slip Op 04008 (App. Div., 2nd 2011)

The Supreme Court, in its discretion, may grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Wigand v Modlin, 82 AD3d 1213; Owen v Lester, 79 AD3d 992; Audiovox Corp. v Benyamini, 265 AD2d 135, 140). The compliance conference order dated February 17, 2010, warning the plaintiff that failure to file a note of issue within 90 days would result in dismissal of the action, did not mandate that all discovery be complete prior to the filing of the note of issue. Even though the defendant Kone, Inc. (hereinafter the defendant), was impeding discovery, the plaintiff filed a conditional note of issue as directed by the compliance conference order. It was not until after the filing of the conditional note of issue that the defendant moved for a protective order with respect to the plaintiff's discovery requests, on the ground that they were untimely. Under these circumstances, the plaintiff's cross motion to compel the defendant to comply with outstanding discovery should have been granted (see Karakostas v Avis Rent A Car Sys., 306 AD2d 381, 382; Schmitt v Carl Meyer's Hof, Inc., 86 AD2d 985).

Olkovetsy v Friedwald Ctr. for Rehabilitation & Nursing, LLC, 2011 NY Slip Op 04015 (App. Div. 2nd 2011)

Pursuant to CPLR 4504(a), information obtained by, among others, professional nursing personnel in attending to a patient in a professional capacity and "which [is] necessary to enable him [or her] to act in that capacity" is privileged. As a general rule, disclosure of the name and address of a nonparty patient who may have been a witness to an alleged act of negligence or malpractice does not violate the patient's privilege of confidentiality of treatment (see Rabinowitz v St. John's Episcopal Hosp., 24 AD3d 530; Hirsch v Catholic Med. Ctr. of Brooklyn & Queens, 91 AD2d 1033, 1034; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530-531), provided that the requesting party "is not seeking to identify the patient by reference to the medical treatment he [or she] received" (Matter of Seymour, 288 AD2d 894, 894).

Contrary to the defendants' contention, in light of the broad range of services provided in a nursing home, the information requested by the plaintiff did not fall within the ambit of CPLR 4504(a) (see generally Rabinowitz v St. John's Episcopal Hosp., 24 AD3d 530; cf. Gunn v Sound Shore Med. Ctr. of Westchester, 5 AD3d 435, 437). Additionally, the information demanded by the plaintiff was necessary to the prosecution of the action and, as limited by the Supreme Court to the period from January 1, 2005, through February 28, 2005, and to only the residents of the decedent's particular unit of residency, the demand was not overly broad or unduly burdensome (see Grant v PALJR, LLC, 64 AD3d 750, 751).

Trueforge Global Mach. Corp. v Viraj Group., 2011 NY Slip Op 04040 (App. Div., 2nd 2011)

The Supreme Court properly denied the defendants' cross motion for summary judgment dismissing the complaint pursuant to General Obligations Law § 5-701(a)(10). "[I]n a contract action[,] a memorandum sufficient to meet the requirements of the Statute of Frauds must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter" (Morris Cohon & Co. v Russell, 23 NY2d 569, 575; see Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 378-379). "If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482, cert denied 498 US 816; see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109). Thus, "a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable" (Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d at 109; see 2004 McDonald Ave. Realty, LLC v 2004 McDonald Ave. Corp., 50 AD3d 1021; Andor Group v Benninghoff, 219 AD2d 573). Further, while General Obligations Law § 5-701(a)(10) applies to contracts implied in law to pay reasonable compensation (see Snyder v Bronfman, 13 NY3d 504), in an action to recover reasonable compensation, "a sufficient memorandum need only evidence the fact of plaintiff's employment by defendant to render the alleged services" (Morris Cohon & Co. v Russell, 23 NY2d at 575-576)."The obligation of the defendant to pay reasonable compensation for the services is then implied" (id. at 576). Contrary to the defendants' contention, they failed to establish their prima facie entitlement to judgment as a matter of law based on the statute of frauds, as certain e-mail correspondence (see General Obligations Law § 5-701[b][4]; Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 AD3d 476, 477; see also Intercontinental Planning v Daystrom, Inc., 24 NY2d at 379; Aloisi v Coin Phones, 157 AD2d 688) was sufficient to set forth an objective standard for determining the compensation to be paid to the plaintiff as a finder's fee, since it was tied to an extrinsic event, i.e., it was expressed as a percentage of the price paid by the defendants for the located acquisition opportunity, thus rendering the terms definite and enforceable (see Tonkery v Martina, 78 NY2d 893; Novello v 215 Rockaway, LLC, 70 AD3d 909; Edge Mgt. Corp. v Crossborder Exch. Corp., 304 AD2d 422; cf. MP Innovations, Inc. v Atlantic Horizon Intl., Inc., 72 AD3d 571).

Furthermore, the Supreme Court did not improvidently exercise its discretion in granting, upon reargument, the plaintiff's motion to compel a deposition of nonparty Neeraj Kochhar. "[A] corporation has the right in the first instance to determine which of its representatives will appear for an examination before trial" (Barone v Great Atl. & Pac. Tea Co., 260 AD2d 417, 417-418; see Aronson v Im, 81 AD3d 577, 577; Nunez v Chase Manhattan Bank, 71 AD3d 967; Mercado v Alexander, 227 AD2d 391). The moving party that is seeking additional depositions has the burden of demonstrating "(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case" (Zollner v City of New York, 204 AD2d 626, 627; see Thristino v County of Suffolk, 78 AD3d 927; Spohn-Konen v Town of Brookhaven, 74 AD3d 1049; Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d 930, 932-933; Nazario v City of New York, 27 AD3d 439; Barone v Great Atl. & Pac. Tea Co., 260 AD2d at 418). Here, the plaintiff satisfied this burden by demonstrating that the representative produced by the defendants for deposition did not have sufficient knowledge of the events giving rise to the complaint (see Nunez v Chase Manhattan Bank, 71 AD3d 967), and that there was a substantial likelihood that Neeraj Kochhar possessed information which was material and necessary to the issue of whether the plaintiff was entitled to payment of a finder's fee (see Nazario v City of New York, 27 AD3d 439; cf. Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d at 932-933).

Waiver

Fernandez v City of New York, 2011 NY Slip Op 04111 (App. Div., 1st 2011)

Plaintiff has waived her claim that defendants' failure to produce "legible" photographs of the underside of the desk after the accident required an adverse inference that such photographs would have provided notice. The record shows that she was aware of the photographs yet filed a note of issue certifying that discovery was complete (see Escourse v City of New York, 27 AD3d 319 [2006]). In any event, the photographs would not have been probative as to notice, since the track was not visible until after the drawer fell.

Oh discovery, where art thou

Witherspoon v Surat Realty Corp., 2011 NY Slip Op 02380 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of the defendants' motion which was to strike the plaintiff's supplemental bill of particulars, including the particulars of the plaintiff's left shoulder surgery. Pursuant to CPLR 3043(b), a plaintiff may serve a supplemental bill of particulars containing "continuing special damages and disabilities" without leave of the court if it alleges "no new cause of action . . . or new injury." Where, as here, the plaintiff seeks to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars (see Tate v Colabello, 58 NY2d 84, 87; Maraviglia v Lokshina, 68 AD3d 1066, 1067; Shahid v New York City Health & Hosps. Corp., 47 AD3d 798, 800; Zenteno v Geils, 17 AD3d 457, 458), rather than an amended or new bill of particulars. Furthermore, there was no showing of prejudice to the defendants, as the supplemental bill of particulars was served more than 30 days prior to trial and the Supreme Court directed the parties to conduct further pretrial proceedings (see 22 NYCRR 202.21[d]; Maraviglia v Lokshina, 68 AD3d at 1067; Fortunato v Personal Woman's Care, P.C., 31 AD3d 370, 371).

The Supreme Court also properly denied that branch of the defendants' motion which was to vacate the note of issue and certificate of readiness. A motion to vacate the note of issue and certificate of readiness made more than 20 days after their service will be granted only where "a material fact in the certificate of readiness is incorrect" or upon "good cause shown" (22 NYCRR 202.21[e]; see Torres v Saint Vincents Catholic Med. Ctrs., 71 AD3d 873; Ferraro v North Babylon Union Free School Dist., 69 AD3d 559, 561). The defendants failed to satisfy these requirements (see Schenk v Maloney, 266 AD2d 199; Audiovox Corp. v Benyamini, 265 AD2d 135, 139; Stella v Ahmed, 223 AD2d 698).

Buxbaum v Castro, 2011 NY Slip Op 01967 (App. Div., 2nd 2011)

CPLR 3101(a) requires, in pertinent part, "full disclosure of all matter material and necessary in the prosecution or defense of an action." However, the principle of "full disclosure" does not give a party the right to uncontrolled and unfettered disclosure (Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531; see Peluso v Red Rose Rest., Inc., 78 AD3d 802, 803). The Supreme Court has broad discretion over the supervision of disclosure, and its determination will not be disturbed absent an improvident exercise of that discretion (see Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694, 695). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to direct the defendant to permit him and/or his "authorized computer forensic experts" to "impound, clone and inspect" certain computer equipment, including hard drives and other digital data storage devices, possessed by the defendant (see Gilman & Ciocia, Inc. v Walsh, 45 AD3d at 531).

Muzio v Napolitano, 2011 NY Slip Op 01987 (App. Div., 2nd 2011)

The defendants in this medical malpractice action conducted an interview of the plaintiff's treating physician, a nonparty, without obtaining a valid authorization pursuant to the Health Insurance Portability and Accountability Act of 1996 (Pub L No 104-191, 110 Stat 1936 [1996]). Notwithstanding the fact that the plaintiff placed her medical condition in controversy, the defendants were required to obtain an authorization expressly permitting an interview with her treating physician prior to conducting the interview (see Arons v Jutkowitz, 9 NY3d 393; Porcelli v Northern Westchester Hosp. Ctr., 65 AD3d 176). 

Since any information obtained by the defendants from the interview was "improperly . . . obtained" (CPLR 3103[c]), the Supreme Court should have granted that branch of the plaintiff's pretrial motion which was pursuant to CPLR 3103(c) for a protective order precluding the defendants from calling her treating physician to testify at trial as an expert witness for the defense, and from introducing, at trial, the information obtained from the interview (see Straub v Yalamanchili, 58 AD3d 1050; Surgical Design Corp. v Correa, 21 AD3d 409; Keschecki v St. Vincent's Med. Ctr., 5 Misc 3d 539).

Wigand v Modlin, 2011 NY Slip Op 02654 (App. Div., 2nd 2011)

In this action to recover damages for medical malpractice and lack of informed consent, the defendant moved, on the eve of trial, inter alia, to direct the plaintiff to appear for an independent medical examination (hereinafter IME). Thereafter, the Supreme Court issued a written order dated April 16, 2009, which, among other things, directed the plaintiff to appear for the IME. The plaintiff then moved, in effect, for leave to reargue her opposition to that branch of the defendant's motion which was to direct her to appear for the IME. Upon reargument, the Supreme Court adhered to its prior determination. We reverse the order insofar as appealed from.

The Supreme Court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Owen v Lester, 79 AD3d 992; Audiovox Corp. v Benyamini, 265 AD2d 135, 140). However, the Supreme Court erred in adhering to its determination granting that branch of the defendant's motion, made on the eve of trial, which was to direct the plaintiff to appear for an IME. The defendant failed to offer evidence of unusual or unanticipated circumstances that developed subsequent to the filing of the note of issue and certificate of readiness to justify relieving him of the consequences of his failure to conduct a timely medical examination of the plaintiff (see Owen v Lester, 79 AD3d 992; Manzo v City of New York, 62 AD3d 964, 965; Audiovox Corp. v Benyamini, 265 AD2d at 138).

 

Post Note of Issue Discovery and the “Wherefore” clause.

Don't get too caught up in the NOI discovery issue.  Read all the way down where the court discusses the "Wherefore" clause.  This is why you put in "such other, further, or different
relief" etc etc etc.

22 NYCRR 202.21 Note
of issue and certificate of readiness

Tirado v Miller, 2010 NY Slip Op 04364 (App. Term, 2nd, 2010)

A certificate of readiness certifies that all discovery is completed,
waived, or not required and that the action is ready for trial (see 22
NYCRR 202.21[b]). The effect of a statement of readiness is to
ordinarily foreclose further discovery
(see Blondell v Malone, 91
AD2d 1201; Niagara Falls Urban Renewal Agency v Pomeroy Real Estate
Corp.,
74 AD2d 734; Bookazine Co. v J & A [*3]Bindery, 61 AD2d 919).

Discovery that is nevertheless sought after the filing of a note
of issue and certificate of readiness is governed by a different set of
procedural principles than discovery that is sought prior to the filing
of a note of issue. Pre-note discovery includes disclosure of "all
matter material and necessary in the prosecution or defense of an
action"
(see CPLR 3101[a]), which is to be liberally construed (see
Allen v Crowell-Collier Publ. Co.,
21 NY2d 403, 406; Byck v
Byck,
294 AD2d 456, 457; U.S. Ice Cream Corp. v Carvel Corp., 190
AD2d 788). Post-note discovery, on the other hand, may only be sought
under two procedural circumstances set forth in 22 NYCRR 202.21. As
discussed by this Court in an opinion by Justice Feuerstein in Audiovox
Corp. v Benyamini
(265 AD2d 135, 138), one method of obtaining
post-note discovery is to vacate the note of issue within 20 days of its
service pursuant to 22 NYCRR 202.21(e), by merely showing that
discovery is incomplete and the matter is not ready for trial. The
second method, beyond that 20 days, requires that the movant, pursuant
to 22 NYCRR 202.21(d), meet a more stringent standard and demonstrate
"unusual or unanticipated circumstances and substantial prejudice"
absent the additional discovery
(Audiovox Corp. v Benyamini, 265
AD2d at 138; see Schroeder v IESI NY Corp., 24 AD3d 180, 181; Aviles
v 938 SCY Ltd.,
283 AD2d 935, 936).

Here, it is not contested that the note of issue and certificate
of readiness were filed in February 2008. The note of issue was never
stricken as a result of any motion filed within the 20-day deadline set
forth in 22 NYCRR 202.21(a). Accordingly, any additional discovery
sought by the plaintiff from Travelers must meet the requirements of 22
NYCRR 202.21(d) that the discovery be needed because of "unusual or
unanticipated circumstances" and that its absence causes "substantial
prejudice."

We recognize that the trial court did not grant any unrequested
relief, but rather, granted the specific relief sought by the defendants
and Travelers in their motion of quashing the plaintiff's subpoena and,
in effect, granting a protective order. On appeal, the plaintiff takes
issue, inter alia, with the Supreme Court's having determined the motion
on a ground unrelated to the privilege and relevance issues briefed by
the parties. However, in rendering decisions on motions, trial courts
are not necessarily limited by the specific arguments raised by parties
in their submissions.
CPLR 2214(a) provides that a notice of motion
shall specify the time and place of the hearing on the motion, the
supporting papers upon which it is based, the relief demanded, and the
grounds therefor. A court typically lacks the jurisdiction to grant
relief that is not requested in the moving papers
(see McGuire v
McGuire,
29 AD3d 963, 965; NYCTL 1998-1 Trust v Prol Props.
Corp.,
18 AD3d 525, 527). The notice of motion in this instance
sought an order quashing the subpoena and granting a protective order on
the limited grounds of privilege and irrelevance. However, the notice
of motion also contained a general prayer, for "such other and further
relief as [the] [c]ourt may deem just and proper."

General relief clauses, for "such other, further, or different
relief," are often included in notices of motion by practitioners to
cover the possibility that the appropriate relief is not what the movant
has specifically asked for, "but is close enough to enable the court to
grant it" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C2214:5). The presence of a general relief clause enables
the court to grant relief that is not too dramatically unlike that which
is actually sought, as long as the relief is supported by proof in the
papers and the court is satisfied that no party is prejudiced
(see
Frankel v Stavsky,
40 AD3d 918; HCE Assoc. v 3000 Watermill Lane
Realty Corp.,
173 AD2d 774; Lanaris v Mutual Benefit Life Ins.
Co.,
9 AD2d 1015).

The bold is mine.

Late–but not too late–Jury Demand

Rosenbaum v Schlossman, 2010 NY Slip Op 03494 (App. Div., 1st, 2010)

Order, Supreme Court, New York County (Milton A. Tingling, J.),
entered March 30, 2009, which denied defendants' motion to vacate the
note of issue, unanimously affirmed, without costs. Order, same court,
Justice and entry date, which denied defendants' motion to stay a
scheduled nonjury trial of this matter and compel the Clerk to accept a
jury demand, unanimously modified, on the facts, to direct the Clerk to
accept the jury demand nunc pro tunc, and, in view of the interim stay
of trial previously ordered by this Court, the remainder of the appeal
from said order unanimously dismissed as academic, without costs.

Defendants should be permitted to serve and file a late jury
demand given that the lateness, by only five days, was due in part to
the late filing of the note of issue, and also given no intention by
defendants to waive a jury trial, a prompt motion by defendants to be
relieved of their default in timely filing a jury demand, and no
prejudice to plaintiff caused by the late jury demand
(see A.S.L.
Enters. v Venus Labs.
, 264 AD2d 372, 373 [1999]). Defendants' motion
to vacate the note of issue was properly denied where defendants had
received copies of plaintiff's letter to the court requesting the
court's issuance of a written order memorializing a prior oral order
extending the time to file a note of issue, but did not object to the
requested relief or inform [*2]the court,
at that time, of their view that disclosure was incomplete (22 NYCRR
202.21[d])
. We have considered and rejected defendants' remaining
contention.

The bold is mine.

Instead of simply writing that the remaining contention is "rejected" wouldn't it be nice if they said what the remaining contention was.

NYCRR 202.27; 22 NYCRR 202.21

22 NYCRR 202.27 Defaults

22 NYCRR 202.21 Note of issue and certificate of readiness

Donnelly v Treeline Cos., 66 AD3d 563 (App. Div., 1st, 2009)

A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) is governed by CPLR 5015. Such a motion must be made within one year of service of a copy of the dismissal order with notice of entry, and be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action. Where the dismissal order has never been served with notice of entry, there is no time limit on making a motion to vacate the dismissal, and any alleged prejudice caused by postdismissal delay, short of laches, is not a consideration (Acevedo v Navarro, 22 AD3d 391 [2005]).

Plaintiff demonstrates both a reasonable excuse and the existence of a meritorious cause of action. The fact that none of the parties appeared for the scheduled court conference in July 2002 indicates that plaintiff's default was reasonable and likely attributable to the court's failure [*2]to notify everyone about the conference, whose date is not found in any prior conference order. Plaintiff's former attorney averred that his office was never notified of the conference or informed of the dismissal. Lack of receipt of notice can be a valid excuse for failure to appear at a conference (see Latha Rest. Corp. v Tower Ins. Co., 285 AD2d 437 [2001]).

Plaintiff has also established a meritorious cause of action. Indeed, on a prior appeal in 2004 (13 AD3d 143 [2004]), we affirmed the existence of numerous triable issues of fact concerning the liability of defendants Treeline and Commercial, and also of third-party defendant Republic.

Defendants contend that plaintiff's delay in moving to vacate the section 202.27 dismissal amounted to laches. While defendants were not apparently prejudiced in the two years immediately after the dismissal, during which they continued actively litigating, the case did thereafter remain inactive for a three-year period until plaintiff's motion to vacate the dismissal in 2007. This delay, though lengthy, was not unreasonable. In any event, defendants have not alleged prejudice from this delay, other than in conclusory fashion.

Figueroa v Sanchez, 2009 NY Slip Op 08881 (App. Div., 1st, 2009)

Due to his incarceration, plaintiff defaulted by failing to appear at a preliminary conference (22 NYCRR 202.27). The only remedy for plaintiff's default in these circumstances is not an appeal, but rather a motion in Supreme Court to vacate the default (see Campos v New York City Health & Hosps. Corp., 307 AD2d 785, 786 [2003]). In the present posture of the case, there is no appealable order for this Court to review. Finally, we note that plaintiff claims that he made numerous attempts to communicate with the court about his appearances that were not addressed.

Gaskin v Ilowitz, 2010 NY Slip Op 00097 (App. Div., 2nd, 2010)

The plaintiff's certificate of readiness incorrectly stated that the bill of particulars, physical examinations, exchange of medical reports, and any discovery proceedings known to be necessary were waived. In addition, it falsely declared that preliminary proceedings had been completed and that the case was ready for trial. Because of these misstatements of material facts, that branch of the defendant's motion which was to vacate the note of issue was properly granted (Brown v Astoria Fed. Sav., 51 AD3d 961, 962; see 22 NYCRR 202.21[e]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497; Spilky v TRW, Inc., 225 AD2d 539, 540).

Ferraro v North Babylon Union Free School Dist., 2010 NY Slip Op 00095 (App. Div., 2nd, 2010)

A motion for vacatur of the note of issue and certificate of readiness made more than 20 days after their filing will be granted only where "a material fact in the certificate of readiness is incorrect" or upon "good cause shown" (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" (White v Mazella-White, 60 AD3d 1047, 1049, quoting Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794). Here, the plaintiffs neither proffered an excuse for their delay (id. at 794), nor "demonstrate[d] . . . unusual or unanticipated circumstances" (White v Mazella-White, 60 AD3d at 1049). Accordingly, the court properly denied that branch of the plaintiffs' cross motion which was to vacate the note of issue and certificate of readiness.

Singh v City of New York, 2009 NY Slip Op 09646 (App. Div., 2nd, 2009)

[T]hat branch of the defendants' motion which, in effect, was to compel the plaintiffs to respond to additional discovery demands regarding the immigration status of the plaintiff Harminder Singh is denied. While the Supreme Court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing which require additional pretrial proceedings to prevent substantial prejudice (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Futersak v Brinen, 265 AD2d 452), here, the defendants failed to establish any such unusual or unanticipated circumstances that would warrant the additional post-note-of-issue discovery they sought (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135; Futersak v Brinen, 265 AD2d 452). The defendants also failed to establish that the denial of their request would cause them actual, substantial prejudice (see Audiovox Corp. v Benyamini, 265 AD2d at 139).

The bold is mine.

Today in the First Department (22 NYCRR 202.2, CPLR R. 3211, CPLR R. 3212, CPLR § 306-b, CPLR § 3121, SOL)

Several decisions popped out of the Appellate Division, First Department,  today.  In a break from my normal posting style, where I try to split posts between sections and rules, I'm going to post the few decisions that I found interesting.


Ocasio-Gary v Lawrence Hosp.,
2010 NY Slip Op 00003 (App. Div., 1st, 2009)

Even had St. Barnabas met its initial burden, plaintiff's expert's submission raises triable issues of fact regarding the hospital's negligence (see DaRonco v White Plains Hosp. Ctr., 215 AD2d 339 [1995]). The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion. Venue should be retained in Bronx County. The only ground for the motion to change venue was the dismissal of the complaint against St. Barnabas, and the complaint has been reinstated.

The motion to vacate plaintiff's note of issue, served more than 20 days after service of that note, was properly denied as untimely (see 22 NYCRR 202.21[e]), "no showing of special circumstances or adequate reason for the delay having been offered" (Arnold v New York City Hous. Auth., 282 AD2d 378 [2001]). Nor did the court err in finding that defendant Orin failed to demonstrate good cause for an extension of time in which to file his motion for summary judgment (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Johnson v Concourse Vil., Inc., 2010 NY Slip Op 00010 (App. Div., 1st, 2009)

Although plaintiff's counsel served her pleadings just one day after the applicable 120-day service period expired (see CPLR 306-b), and counsel offered proof that he attempted to arrange for service with eight days remaining out of the 120-day period, he nonetheless failed to show diligence in his efforts to effect service, particularly as the three-year statute of limitations (CPLR 214[5]) had already expired, and he did not follow up with the process server regarding completion of service until after the 120-day service period had expired. There was no evidence to indicate that the corporate defendants could not be located, or that they could not be readily served through the Secretary of State. Furthermore, counsel waited until after defendants moved to dismiss before he cross-moved for an extension of the time to serve some several months later. Such evidence of lack of diligence undermines plaintiff's "good cause" argument in support of her extension request (see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).

Nor is a grant of an extension to serve the pleadings warranted in the interest of justice. The circumstances presented, including that the statute of limitations expired, plaintiff's lack of diligence in prosecuting this action, the lack of probative evidence offered as to the claim's merit, the vague allegations of injury, the lack of notice given of the claim for more than three years and three months, the prejudice to defendants and the several month delay in moving for an extension of the time to serve, demonstrate that the dismissal of this action was appropriate (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Posada v Pelaez, 37 AD3d 168 [2007]; compare de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).

One day late.

Suss v New York Media, Inc., 2010 NY Slip Op 00011 (App. Div., 1st, 2009)

We reject plaintiff's argument that such evidence fails to show, prima facie, that the issue first was published on April 29. The affidavits submitted by defendants were made with personal knowledge of the issue's distribution date; the distributor's affidavit was the proper vehicle for the submission of photographs taken by him and his staff (see H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98, 98 [1992]); and the photographs, as enhanced and highlighted in defendants' reply, clearly depict what they are claimed to depict. In opposition, plaintiff failed to submit any evidence of a later publication.

We also reject plaintiff's argument that unless the court gives CPLR 3211(c) notice of its intention to do so, it may not consider nondocumentary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Alverio v New York Eye & [*2]Ear Infirmary, 123 AD2d 568 [1986]; Lim v Choices, Inc., 60 AD3d 739 [2009]).

Welter v Feigenbaum, 2010 NY Slip Op 00012 (App. Div., 1st, 2009)

A plaintiff, in an action for negligent transmittal of genital herpes simplex II, may demand that the defendant submit to a blood test to determine if the latter indeed has the virus (see CPLR 3121). Since the test was ordered in conjunction with the litigation, it is not subject to the physician-patient privilege (see Connors, McKinney's CPLR Practice Commentary C3121:2). Even were the privilege to apply, defendant waived it by asserting the affirmative defense that he was asymptomatic (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287-288 [1989]). Defendant's effort to limit the scope of discovery has simply focused the issue on whether or not he has the virus. This issue is relevant to — and potentially dispositive of — the action. If the test is negative, the case will be subject to dismissal. If, on the other hand, it is positive, defendant will have an opportunity to prove his affirmative defenses that he did not have the virus in 2002, or was unaware that he had it or was asymptomatic at the time of alleged transmittal to plaintiff.

All concur except Andrias and McGuire, JJ., who concur in a separate memorandum by McGuire, J. as follows:

McGUIRE, J. (concurring)

We write separately to emphasize that we express no view on the issue of whether, if the test is positive, it is adm
issible at trial (see People v Scarola, 71 NY2d 769, 777 [1988] ["(e)ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the [*2]exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury"]).

The herpes case.