Category: NYCRR

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.

Sanctions (22 NYCRR 130-1.1) and Contempt. A non-party can’t be sanctioned under 130-1.1

Thankfully, these are short decisions.

22 NYCRR 130-1.1 Costs; sanctions

Singer v New York City Tr. Auth., 2009 NY Slip Op 07956 (App. Div., 1st, 2009)

Supreme Court providently exercised its discretion in denying
plaintiff's motion for sanctions, which was brought eight months after
the trial had concluded with a verdict in plaintiff's favor. While the
trial court had stated that plaintiff could move for sanctions
"whenever [she] wish[ed] to," this remark did not provide plaintiff
with an unlimited period of time to bring the motion, and as the court
found, the eight-month delay was unreasonable.

Ficus Invs., Inc. v Private Capital Mgt., L.L.C., 2009 NY Slip Op 07493 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered
September 10, 2008, which, to the extent appealed from as limited by
the brief, granted plaintiffs' motion to hold defendant Christopher
Chalavoutis in civil contempt, unanimously affirmed, with costs.

The record demonstrates that in February 2008 defendant was
instrumental in negotiating the conveyance of certain mortgages without
providing notice to plaintiffs, thereby disobeying an order of the
court, entered December 21, 2007, that prohibited defendant from taking
any action with respect to the subject mortgages "without first
providing 48 hour[] written notice" to counsel for plaintiffs. The
record further demonstrates that defendant's actions were calculated to
impair, impede or prejudice plaintiffs' rights (see Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]).

Joan 2000, Ltd. v Deco Constr. Corp., 2009 NY Slip Op 07593 (App. Div., 2nd, 2009)

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the attorney for a party for frivolous conduct (see
22 NYCRR 130-1.1[b]). Conduct is frivolous if it is completely without
merit in law or fact and cannot be supported by a reasonable argument
for the extension, modification, or reversal of existing law; it is
taken to primarily delay or prolong the resolution of the litigation,
or harass or maliciously injure another; or it asserts material factual
statements that are false (see 22 NYCRR 130-1.1[c]; Mascia v Maresco, 39 AD3d 504; Greene v Doral Conference Ctr. Assoc.,
18 AD3d 429, 431). Here, the Supreme Court improvidently exercised its
discretion in imposing a sanction upon Eric W. Berry, the attorney for
the defendant WBP Central Associates, LLC, as his conduct was not
frivolous within the meaning of 22 NYCRR 130-1.1 (see Wagner v Goldberg, 293 AD2d 527; Matter of Gavilanes v Dilan, 281 AD2d 546).

Additionally, the Supreme Court had no authority to impose a sanction
upon Anthony Piazza pursuant to 22 NYCRR 130-1.1, since he is neither a
party to this action nor an attorney (see Brock v Wagner, 283 AD2d 535; Saastomoinen v Pagano, 278 AD2d 218).

G&T Term. Packaging Co. Inc. v Western Growers Assn., 2009 NY Slip Op 07503 (App. Div., 1st, 2009)

The IAS court did not abuse its discretion by determining that
plaintiffs' conduct was frivolous within the meaning of 22 NYCRR
130-1.1(c)(2) (see Pickens v Castro, 55 AD3d 443,
444 [2008]). Contrary to plaintiffs' claim, courts take into
consideration the entire dispute between the parties, not just the
lawsuit in which sanctions are imposed (see Murray v National Broadcasting Co., 217 AD2d 651, 653 [1995]; Matter of Jemzura v Mugglin, 207 AD2d 645 [1994], appeal dismissed
84 NY2d 977 [1994]). If plaintiffs wished to litigate the underlying
merits of the parties' dispute, e.g., the quality of the produce sold
by one of the defendants to one of the plaintiffs (see 56 AD3d 266 [2008], appeal dismissed 12 NY3d 729 [2009]), they should have
pursued their federal appeals (see generally Jason v Chusid, 172 AD2d 172, 173 [1991], lv dismissed 78 NY2d 1008 [1991]).

The bold is mine.

22 NYCRR § 208.14(c); CPLR R. 3404; an interesting (but wrong) theory re: law of the case

Law of the case

22 NYCRR § 208.14 Calendar default; restoration; dismissal

(c) Actions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken. A motion must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.

CPLR R. 3404 Dismissal of abandoned cases

Bowman v Beach Concerts, Inc., 2009 NY Slip Op 07747 (App. Div., 1st, 2009)

As plaintiff concedes, the showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment (see Kaufman v Bauer, 36 AD3d 481, 482 [2007]). Indeed, this Court has previously held that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants (see Gamiel v Curtis & Reiss-Curtis, P.C., 60 AD3d 473, 474 [2009], lv dismissed __ NY3d __ [2009], 2009 NY LEXIS 3484; see also Embraer Fin. Ltd. v Servicios Aereos Profesionales, S.A., 42 AD3d 380, 381 [2007]). Thus, plaintiff's argument that this Court's prior order was "law of the case" precluding summary judgment in respondents' favor, or an "implicit recognition" of the merits of his claims, is without merit.

Deltejo v St. Nicholas Venture Inc., 2009 NY Slip Op 07689 (App. Div., 1st, 2009)\

Because the dismissal order, under CPLR 3404, did not result from an order on notice, it is not appealable as of right. However, we deem the notice of appeal to be a motion for leave to appeal, and exercise our discretion (CPLR 5701[c]) to grant leave and consider the merits of this appeal (see Jun-Yong Kim v A & J Produce Corp., 15 AD3d 251 [2005]; Mulligan v New York Cornell Med. Ctr., 304 AD2d 492 [2003]).

The matter is restored to the trial calendar without prejudice to defendants' seeking preclusion relief. It is apparent that another Justice on a prior motion for restoration had intended that the matter go to trial, and that if plaintiff could not produce certain medical evidence, defendants' remedy would be issue preclusion, not an order striking the complaint. Defendants argue that the prior order was wrongly decided and the motion to restore should have been denied outright. However, defendants did not appeal from that order, and in any event, their argument is without merit (see Burgos v 2915 Surf Ave. Food Mart, 298 AD2d 282 [2002]).

.

Lack of good faith letter requires denial of cross-motion 22 NYCRR 202.7(c)

22 NYCRR 202.7 Calendaring of motions; uniform notice of motion form; affirmation of good faith

(c) The affirmation of the good faith effort
to resolve the issues raised by the motion shall indicate the time,
place and nature of the consultation and the issues discussed and any
resolutions, or shall indicate good cause why no such conferral with
counsel for opposing parties was held.

Natoli v Milazzo, 2009 NY Slip Op 06815 (App. Div., 2nd, 2009)

Further, the court should have denied the cross motion because the
affirmation of good faith submitted by the plaintiffs' counsel was
insufficient, as it did not refer to any communications between the
parties that would evince a diligent effort by the plaintiffs to
resolve the discovery dispute (see 22 NYCRR 202.7[c]; Amherst Synagogue v Schuele Paint Co., Inc., 30 AD3d 1055, 1056-1057; Cestaro v Chin, 20 AD3d 500, 501; see also Baez v Sugrue, 300 AD2d 519, 521).

Page Limits

I'm sure you have notice that I haven't been posting with my normal fury.  That didn't sound right, maybe "furiously posting?"  Nevermind.  I just haven't been posting as often as I used to.  There are a couple of reasons.  First, I have a lot of work to do.  Real work, not blogging.  Second, I have a lot of blogging to do.  Third, my computer has gone batshit crazy and I need a new one, but I can't buy one at the moment.  Unless.  Unless, one of you readers wants to donate a sweet new computer.  No garbage.  I'm picky.  Needs to be a Mac.  I'm sure one of you has an extra few thousand dollars lying around.

That said, here is a funny case about page limits.

22 NYCRR 9.1 Filing of rules and regulations required

Macias v City of Yonkers, 2009 NY Slip Op 06811 (App. Div., 2nd, 2009)

In this action to recover damages for personal injuries, the
defendant moved pursuant to CPLR 3126, on the basis of the plaintiffs'
failure to comply with its discovery demands and discovery orders, to
dismiss the complaint or, in the alternative, to preclude the
plaintiffs from offering any testimony with regard to the infant
plaintiff's alleged injuries or medical treatment. The Supreme Court
refused to consider those portions of the defendant's supporting
affidavit that exceeded the court's page limit, and denied the motion
as unsupported. The defendant then moved for leave to reargue and renew
its motion pursuant to CPLR 3126. The Supreme Court denied leave to
renew, granted leave to reargue, and, upon reargument, adhered to the
original determination.

Courts operating under the individual assignment system are authorized to establish rules for the proceedings before them (see
22 NYCRR 9.1). Those rules, however, and the procedures by which they
are enforced, must be reasonable. As the rules of this Court
demonstrate, page limits on submissions are appropriate (see 22 NYCRR 670.10.3[a][3]), as is the rejection of papers that fail to comply with those limits (see 22 NYCRR 670.10.1[f]). It is not reasonable, however, for a court to accept [*2]papers
that do not comply with the court's page limitation and then refuse to
read the noncompliant pages, denying, as a consequence, substantive
relief that may be warranted. Having accepted the defendant's
supporting papers, the Supreme Court should have considered the entire
affidavit submitted in support of the defendant's motion, inter alia,
to dismiss the complaint. Accordingly, we remit the matter to the
Supreme Court, Westchester County, for a new determination on the
merits of the defendant's motion pursuant to CPLR 3126.

Reject it all or accept it all.

Post Note of Issue Discovery and Privilege, but not in that order

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3101(d) Trial Preparation (2) Materials

CPLR § 3101(c)  Attorney's work product

McClier Corp. v United States Rebar, Inc., 2009 NY Slip Op 06786 (App. Div., 1st, 2009)

In response to plaintiff's discovery demands, defendants submitted
privilege logs that identified each of the documents withheld and set
forth a basis for the assertion of a privilege as to each. The motion
court then conducted an in camera review of the withheld documents and
ruled that most were protected by either the attorney-client privilege
(CPLR 3101[b]) or the immunities for attorney work product (CPLR
3101[c]) and materials prepared for litigation (CPLR 3101[d][2]). No
basis exists to disturb this ruling. Documents in an insurer's claim
file that were prepared for litigation against its insured are immune
from disclosure (Grotallio v Soft Drink Leasing Corp., 97 AD2d
383 [1983]), and, while documents prepared in an insurer's ordinary
course of business in investigating whether to accept or reject
coverage are discoverable (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [2005]), there is no [*2]indication
that any such documents are being protected here. We have considered
plaintiff's remaining arguments and find unavailing.

Compare with 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 2009 NY Slip Op 03793 (App. Div., 1st, 2009)("Here the motion court properly
determined that the documents were not protected because appellant
failed to demonstrate that the investigation was conducted solely in
anticipation of litigation. Such reports of insurance investigators or
adjusters prepared during the processing of a claim are discoverable in
the regular course of the insurance company's business")

Singh v 244 W. 39th St. Realty, Inc., 2009 NY Slip Op 06826 (App. Div., 2nd, 2009)

To prevent substantial prejudice, the Supreme Court, in its
discretion, may grant leave 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 (22 NYCRR 202.21[d]; see James v New York City Tr. Auth., 294 AD2d 471, 472; Audiovox Corp. v Benyamini, 265
AD2d 135, 140). Here, approximately nine months after the filing of the
note of issue, the plaintiff served a supplemental bill of particulars
and an expert report with worksheets alleging that the cost of his
future medical care would be approximately $8.9 million. This amount
was more than three times what had been alleged earlier. Under these
circumstances, the defendants demonstrated that "unusual or
unanticipated circumstances" developed subsequent to the filing of the
note of issue, justifying an additional deposition of the plaintiff
regarding his claim for future medical care (cf. Karakostas v Avis Rent A Car Sys., 306
AD2d 381, 382). Accordingly, that branch of the defendants' motion
which was for leave to conduct additional discovery of the plaintiff
with respect to his claim for future medical care should have been
granted.

The defendants, however, failed to demonstrate that "unusual or
unanticipated circumstances" developed subsequent to the filing of the
note of issue with respect to surveillance videos [*2]of
the plaintiff or the plaintiff's claim for lost wages. The plaintiff's
supplemental bill of particulars claiming lost wages was served
approximately nine months prior to the filing of the note of issue and
one year and eight months prior to the defendants' motion, and the
plaintiff did not allege that the amount of his claim for lost wages,
as opposed to his claim for future medical care, had changed
dramatically (see Schenk v Maloney, 266 AD2d 199, 200; Frangella v Sussman, 254
AD2d 391, 392). Moreover, the defendants failed to explain why the
surveillance could not have been conducted earlier in the discovery
process (see Audiovox Corp. v Benyamini, 265 AD2d at 140).
Accordingly, those branches of the defendants' motion which were for
leave to conduct additional discovery of the plaintiff with respect to
the surveillance videos and his claim for lost wages were properly
denied.

Polygram Holding, Inc. v Cafaro, 2009 NY Slip Op 07165 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered
April 29, 2009, which, to the extent appealed from as limited by the
briefs, limited the scope of an EBT granted to defendant and denied
defendant's motion to strike the note of issue, unanimously affirmed,
without costs.

The court appropriately struck a discretionary balance in
granting defendant certain additional discovery consistent with our
prior discovery ruling in this matter (42 AD3d 339, 340-341), while
maintaining control of its trial calendar (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190 [2005]).

The bold, of course, is mine.

Sanctions!

22 NYCRR 130-1.1 Costs; sanctions

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Caplan v Tofel, 2009 NY Slip Op 06658 (App. Div., 2nd, 2009)

The Supreme Court also providently exercised its discretion
in granting that branch of the defendants' motion which was to impose a
sanction upon the plaintiff pursuant to 22 NYCRR 130-1.1 for frivolous
conduct. Contrary to the plaintiff's contention, the record supports
the Supreme Court's finding that he engaged in frivolous conduct by
instituting this action for the primary purpose of delaying enforcement
of the defendants' judgment (see Matter of Minister, Elders & Deacons of Ref. Pro. Dutch Church of City of N.Y. v 198 Broadway, 76
NY2d 411). However, the Supreme Court providently exercised its
discretion in denying that branch of the defendant's motion which was
to impose a sanction upon the plaintiff's counsel, based upon its
finding that counsel was not fully aware of the history of prior
litigation between the parties.

The continuation of the same patently meritless arguments on
appeal would appear to constitute frivolous conduct, and therefore we
direct counsel for the parties to show cause why additional sanctions
should or should not be imposed (see Good Old Days Tavern, Inc. v Zwirn, 271 AD2d 270; 22 NYCRR 130-1.1[c]).

Matter of Nazario v Ciafone, 2009 NY Slip Op 06691 (App. Div., 2nd, 2009)

In support of that branch of the petition which was to compel the
appellant to turn over the petitioner's file to her new attorney, the
petitioner presented proof that on January 25, 2007, the appellant
received her letter discharging him as her attorney and requesting him
to turn over her file. In opposition, the appellant submitted his
affirmation in support of his claims that the petitioner had given him
more time to work on her file and that he had a common-law retaining
lien on the file to secure his right to reimbursement of disbursements (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-459; Lelekakis v Kamamis, 8 AD3d 630; Lansky v Easow, 304 AD2d 533; Landy v Jacobs, 284
AD2d 432). The appellant is a party to this proceeding; therefore, his
submission of an affirmation rather than an affidavit was insufficient
to oppose the petition because it was not in admissible form (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 n *; Pisacreta v Minniti, 265 AD2d 540; Lauer v Rapp, 190
AD2d 778). Furthermore, he failed to submit any proof demonstrating
that he had earned any fee or was entitled to recover any disbursements
that had been paid prior to the effective date of the discharge (cf. Lelekakis v Kamamis, 8 AD3d 630; Lansky v Easow, 304 AD2d 533; Security Credit Sys. v Perfetto, 242 AD2d 871; Roskind v Brown, 29
AD2d 549, 550). Accordingly, the court properly granted that branch of
the petition which was to compel the appellant to turn over the
petitioner's file to her new attorney without holding an expedited
hearing, since the appellant's papers in opposition failed to raise an
issue of fact regarding a retaining lien for disbursements.

Furthermore, the court providently exercised its discretion in
granting that branch of the petition which was pursuant to 22 NYCRR
130-1.1 for an award of costs and the imposition of sanctions [*2]against
the appellant. Contrary to the appellant's contention, since the
petitioner expressly requested the subject relief in her motion papers,
and the appellant was afforded an opportunity to be heard and to oppose
the motion, a hearing was not required (see 22 NYCRR 130-1.1[d]; Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411, 413 n; Matter of Balsamo, 55 AD3d 905, 906; Wesche v Wesche, 51 AD3d 909, 910; RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776).

The bold is mine.

New York County Clerk told to take it and like it.

Well, just to take it.  He doesn't really have to like it.  But he might.  He just needs to try it.

22 NYCRR § 104.1 Application
(b) The term court records
shall include all documents and records that are part of the court file
of each case and all books, papers, calendars, statistical schedules
and reports and other records pertaining to the management of court
cases.

CPLR § 3218 Judgment by confession
(b) Entry of judgment

CPLR R. 2101 Form of papers
(e) Copies

CPLR R. 2102 Filing of papers

(a)
Except where otherwise prescribed by law or order of court, papers
required to be filed shall be filed with the clerk of the court in
which the action is triable. In an action or proceeding in supreme or
county court and in a proceeding not brought in a court, papers
required to be filed shall be filed with the clerk of the county in
which the proceeding is brought.

(b)
A paper filed in accordance with the rules of the chief administrator
or any local rule or practice established by the court shall be deemed
filed. Where such rules or practice allow for the filing of a paper
other than at the office of the clerk of the court, such paper shall be
transmitted to the clerk of the court.

(c)
A clerk shall not refuse to accept for filing any paper presented for
that purpose except where specifically directed to do so by statute or
rules promulgated by the chief administrator of the courts, or order of
the court.

Gehring v Goodman, 2009 NY Slip Op 29351 (Supreme Court, New York County, 2009)

This is an article 78 proceeding. The only specific relief that
petitioner seeks is an "order" directing respondent Norman Goodman,
County Clerk of the County of New York (respondent), along with his
agents and representatives, to accept for filing copies of affidavits
that petitioner wants to file pursuant to CPLR 3218 (b). Respondents
have not submitted any papers in opposition.

Petitioner submitted to respondent a copy of an affidavit by a
defendant confessing judgment. According to petitioner, respondent, in
interpreting CPLR 3218 (b), took the position that because the statute
says "the affidavit", that means the original affidavit must be filed,
and thus he would not accept a copy thereof for filing. Petitioner
brought this challenge on August 18, 2009 by order to show cause on an
emergency basis because the three year deadline to file the affidavit
would have expired two days after the proposed order to show cause was
submitted to this court. The court signed the order to show cause and
made it returnable the following day.

CPLR 3218 (b) provides in part:

At any time within three years after the affidavit is executed,
it may be filed with the clerk of the county where the defendant stated
in his affidavit that he resided when it was executed or, if the
defendant was then a non-resident, with the clerk of the county
designated in the affidavit. Thereupon the clerk shall enter a judgment
in the supreme court for the sum confessed. He shall tax costs to the
amount of fifteen dollars, besides disbursements taxable in an action.
The judgment may be docketed and enforced in the same manner and with
the same effect as a judgment in an action in the supreme court.

CPLR 2101 (e) states in pertinent part:
[*2]

Except where otherwise
specifically prescribed, copies, rather than originals, of all papers,
including orders, affidavits and exhibits may be served or filed.

CPLR 2102 (c) provides:

A clerk shall not refuse to accept for filing any paper
presented for that purpose except where specifically directed to do so
by statute or rules promulgated by the chief administrator of the
courts, or order of the court.

Petitioner presented the affidavit to respondent for the
purpose of filing the paper in order to make it part of the court
record, as defined by 22 NYCRR 104.1 (b), and thus obtain a judgment by
confession pursuant to CPLR 3218 (b). Contrary to respondent's position
as stated by petitioner, CPLR 3218 (b) does not specify that only the
original of the affidavit must be accepted for filing and does not
proscribe the filing of a copy of the affidavit. The purpose of CPLR
3218 (b) is to afford a party the discretion to file the affidavit if
desired. CPLR 2101 (e) allows the filing of copies of affidavits (see Lynch v Betts, 12 Misc 3d 295 [Sup Ct, Yates County 2006]), which filing under CPLR 3218 (b) is not otherwise specifically prescribed.

There is neither a statute nor rule of the chief administrator
of the courts that directs respondent to refuse to accept for filing a
copy of an affidavit under CPLR 3218 (b), nor has respondent shown that
there is any court order that so directs him. Professor Alexander
comments that the purpose of CPLR 2102 (c) is to strip clerks of any
authority to reject papers offered for filing unless the refusal is
directed by law, rule, or court order (Alexander, Supp Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, Civil Practice Law
and Rules 2102, 2009 Pocket Part, at 283).

Therefore, pursuant to this court's August 20, 2009 decision,
judgment, and order, this court has directed respondent, and his agents
and representatives, to accept for filing copies of the affidavits
pursuant to CPLR 3218 (b). That is all of the specific relief requested
by petitioner. This court is not directing respondent as to how he
should act in fulfilling his duties after he accepts the affidavits for
filing.

The bold is mine.

The county clerk offered no opposition.  Why?  Well, anyone who has tried to file something in any of New York's courts has run across clerks who refuse to accept documents for a variety of reasons.  Some are legitimate and others are directly related to how early the clerk woke up in the morning.  You get the idea.  So why no response?  Because the County Clerk felt that the affidavits should be accepted (or didn't care one way or the other), and probably decided that the easiest way to deal with issue would be to leave it up to the Court.  This way, they wouldn't have to deal with any internal discord on the issue.  If a judge tells them to do it, they have to do it.

Post-NOT Discovery; 22 NYCRR 202.21

22 NYCRR 202.21 Note of issue and certificate of readiness

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

CPLR R. 5515 Taking an appeal; notice of appeal

1. An
appeal shall be taken by serving on the adverse party a notice of
appeal and filing it in the office where the judgment or order of the
court of original instance is entered except that where an order
granting permission to appeal is made, the appeal is taken when such
order is entered. A notice shall designate the party taking the appeal,
the judgment or order or specific part of the judgment or order
appealed from and the court to which the appeal is taken.

Racine v Grant, 2009 NY Slip Op 06127 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in granting
the defendants' cross motion pursuant to CPLR 3216 to dismiss the
complaint to the extent of directing the plaintiff to comply with a
demand for discovery which was annexed to the cross motion papers, as
the demand was made more than one year after a note of issue had been
filed in the action. The defendants failed to make the requisite
showing that "unusual or unanticipated circumstances" had arisen after
the filing of the note of issue (22 NYCRR 202.21[d], [e]; see Silverberg v Guzman, 61 AD3d 955; Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Marks v Morrison, 275 AD2d 1027), to justify the demanded disclosure at this late stage of the action.

The plaintiff's argument that the Supreme Court should have
granted his motion to strike the defendants' answer is not properly
before us, as the plaintiff's notice of appeal limited the scope of the
appeal to that part of the Supreme Court's order which determined the
defendants' cross [*2]motion (see CPLR 5515[1]; Marciano v Ran Oil Co., E., LLC, 63 AD3d 1118).

The bold is mine.