CPLR § 5511; § 3123

CPLR § 5511 Permissible appellant and respondent

CPLR § 3213 Motion for summary judgment in lieu of complaint

D'Agostino Law Off., P.C. v Parlante, 2009 NY Slip Op 00331 (App. Div., 2nd)

The defendants failed to submit papers in opposition to the plaintiff's
motion for summary judgment in lieu of complaint within the time
provided in the notice of motion (see CPLR 3213), and the
plaintiff's motion for summary judgment in lieu of complaint was
granted on default. No appeal lies from an order or judgment granted
upon the default of the appealing party
(see CPLR 5511; Sanchez v Village of Ossining, 271 AD2d 674; Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co.,
117 AD2d 588). Since the judgment was entered pursuant to an order
granting the plaintiff's motion for summary judgment upon the
defendants' default in appearing and opposing the motion, the appeal
must be dismissed (see Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117 AD2d 588).

The bold is mine.

CPLR R. 2104

CPLR R. 2104 Stipulations

Canarelli v Canarelli, 2009 NY Slip Op 00322 (App. Div., 2nd)

While a stipulation of settlement may be set aside where there is evidence of fraud, overreaching, mistake, or duress (see Matter of Dillon v Dillon, 257 AD2d 621), the defendant failed [*2]to tender evidence in admissible form sufficient to warrant a hearing on her motion to vacate the parties' stipulation (see O'Shell v O'Shell, 54 AD3d 914, 915; Shockome v Shockome, 53 AD3d 610; Chernow v Chernow, 51 AD3d 705,
706). The defendant's contention that the appointment of a receiver to
sell certain real property should be set aside because of a purported
failure to comply with the Court Rules (see 22 NYCRR, Part 36) was not raised before the Supreme Court and, therefore, is not properly before this Court (see Sandoval v Juodzevich, 293 AD2d 595, 595-596; Mourounas v Shahin, 291 AD2d 537; Weber v Jacobs, 289 AD2d 226).

The bold is mine.

CPLR § 3126; R. 3120(1)(i)

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

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

1.
After commencement of an action, any party may serve on any other party
a notice or on any other person a subpoena duces tecum:

(i)
to produce and permit the party seeking discovery, or someone acting on
his or her behalf, to inspect, copy, test or photograph any designated
documents or any things which are in the possession, custody or control
of the party or person served

Argo v Queens Surface Corp., 2009 NY Slip Op 00320 (App. Div., 2nd)

A court may, inter alia, issue an order "striking out pleadings or . .
. rendering a judgment by default" as a sanction against a party who
"refuses to obey an order for disclosure or wilfully fails to disclose
information which the court finds ought to have been disclosed" (CPLR
3126[3]; see Carabello v Luna, 49 AD3d 679).
Striking a defendant's answer is a drastic remedy which is
"inappropriate absent a clear showing that failure to comply with
discovery demands was willful and contumacious" (Paca v City of New York, 51 AD3d 991, 993, quoting Brandes v North Shore Univ. Hosp., 22 AD3d 778; see Jenkins v City of New York, 13 AD3d 342).

The plaintiff did not show that the defendants engaged in willful or
contumacious conduct by failing to provide items "which are in [their]
possession, custody or [*2]control" (CPLR
3120[1][i]). Indeed, the defendants demonstrated that the records and
reports that the plaintiff sought with respect to the defendant Queens
Surface Corp. — a bus company no longer in existence — were now in the
possession of its successor, the MTA Bus Co., which company was not
under their control. Accordingly, the defendants cannot be compelled to
produce or be sanctioned for failing to produce information which they
do not possess or which does not exist
(see Carabello v Luna, 49 AD3d at 680; Tolz v Valente, 39 AD3d 737, 738; Corriel v Volkswagen of Am., 127 AD2d 729, 731).

The bold is mine.

CPLR R. 4511(b)

CPLR R. 4511(b) When judicial notice may be taken without request; when it shall be taken on request.

Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 2009 NY Slip Op 00351 (App. Div., 2nd)

We are asked to determine whether the definition of diagnosis and
procedure codes adopted by the United States Department of Health and
Human Services (hereinafter HHS) as part of its regulatory authority
may be a proper subject for judicial notice under CPLR 4511
. If so, we
must also determine whether the defined diagnostic codes, in and of
themselves, permit a finding that a patient's hospital care and
treatment is wholly outside the scope of no-fault automobile coverage.
Until now, we are not aware of any appellate court that has addressed
the issue of whether the diagnosis and procedure codes key of the
United States. government can be judicially noticed by courts, so that
it may then be used to decipher no-fault billing forms.

CPLR 4511(b) provides that upon request of a party, a court may take
judicial notice of federal, state, and foreign government acts,
resolutions, ordinances, and regulations, including those of their
officers, agencies, and governmental subdivisions. While the concept of
judicial notice is elastic (see Richardson on Evidence § 52
[10th ed]) and applicable to a wide range of subject matter, official
promulgations of government appear to be particularly appropriate for
judicial notice, given the manner that CPLR 4511 expressly singles them
out for such treatment
.

Judicial notice has never been strictly limited to the
constitutions, resolutions, ordinances, and regulations of government,
but has been applied by case law to other public documents that are
generated in a manner which assures their reliability. Thus, the
concept has been applied to census data (see Affronti v Crosson, 95 NY2d 713, 720; Buffalo Retired Teachers 91-94 Alliance v Board of Educ. for City School Dist. of City of Buffalo, 261 AD2d 824, 825; Mackston v State of New York, 126 AD2d 710), agency policies (see Matter of Albano v Kirby, 36 NY2d 526, 532), certificates of corporate dissolution maintained by the Secretary of State (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667), the resignation of public officials (see Matter of Soronen v Comptroller of State of N.Y., 248 AD2d 789, 791; Matter of Maidman, 42 AD2d 44, 47), legislative proceedings (see Outlet Embroidery Co. v Derwent Mills, 254 NY 179, 183), legislative journals (see Browne v City of New York, 213 App Div 206, 233), the consumer price index (see Sommers v Sommers, 203 AD2d 975, 976; City of Hope v Fisk Bldg. Assoc., 63 AD2d 946, 947), the location of real property recorded with a clerk (see Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 23-24), death certificates maintained by the Department of Health (see Matter of Reinhardt, 202 Misc 424, 426), and undisputed court records and files (see e.g. Perez v New York City Hous. Auth., 47 AD3d 505; Walker v City of New York, 46 AD3d 278, 282; Matter of Khatibe v Weill, 8 AD3d 485; Matter of Allen v Strough, 301 AD2d 11, 18). Even material derived from official government websites may be the subject of judicial notice (see Munaron v Munaron, 21 Misc [*5]3d 295 [Sup Ct Westchester County 2008]; Parrino v Russo, 19 Misc 3d 1127[A] [Civ Ct Kings County 2008]; Nairne v Perkins, 14 Misc 3d 1237[A] [Civ Ct Kings County 2008]; Proscan Radiology of Buffalo v Progressive Cas. Ins. Co., 12 Misc 3d 1176[A] [Buffalo City Ct 2006]).

White Plains Hospital argues that the code key available on the
HHS website does not qualify for judicial notice, by relying upon the
language of this Court in Ptasznik v Schultz (247 AD2d 197). In Ptasznik, then-Justice
Albert Rosenblatt defined the test for judicial notice as "whether the
fact rests upon knowledge or sources so widely accepted and
unimpeachable that it need not be evidentiarily proven"
(id. at 198, citing Hunter v New York, Ontario & W.R.R. Co., 116
NY 615). White Plains Hospital maintains that code numbers which
require deciphering do not constitute general information widely
accepted by the average lay person. However, Ptasznik discusses
specifically, and the universe of case law recognizes generally, two
disjunctive circumstances where information may be judicially noticed.
The first is when information "rests upon knowledge [that is] widely accepted" (Ptasznik v Schultz, 247 AD2d at 198 [emphasis added]) such as calendar dates, geographical locations, and sunrise times (id. at 198). The second "rests upon . . . sources [that are] widely accepted and unimpeachable" (id. [emphasis added]), such as reliable uncontested governmental records.

Here, the diagnosis and procedure codes key maintained by the
United States Government on its HHS website is of sufficient
authenticity and reliability that it may be given judicial notice. The
accuracy of the codes key is not contested by White Plains Hospital,
and is not subject to courtroom factfinding (see Affronti v Crosson, 95
NY2d at 720). The fact that the code system might not be readily
understood by the lay public is of no significance, as the information
is proffered for judicial notice not on the basis of being generally
understood by the public, but rather, on the basis of its reliable
source.

We hold, therefore, that the diagnosis and procedure codes key
published by the United States Government on its HHS website may
properly be given judicial notice (see CPLR 4511[b]), as the key is reliably sourced and its accuracy not contested.

The bold is mine.

CPLR R. 3211 motion to dismiss not properly converted to 3212 Motion

CPLR R. 3211 Motion to dismiss

CPLR R. 3212 Motion for summary judgment

Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 2009 NY Slip Op 00180 (App. Div., 3d 2009)

On December 29, 2006, defendant removed its broadcasting equipment
and vacated the premises. Thereafter, plaintiff made a written demand
for defendant to remit $299,700, a sum which plaintiff claimed
represented rent payments for the balance of the five-year 2006 lease
term. Upon defendant's refusal, plaintiff commenced this action on the
theories of breach of contract, breach of implied duty of good faith
and fair dealing, unjust enrichment, quantum meruit and fraud.
Plaintiff also sought a declaration that the 2006 lease was in full
force and effect. In lieu of an answer, defendant moved for dismissal
of the complaint and summary judgment pursuant to CPLR 3211 and/or
3212. In an order without a supporting decision, Supreme Court granted
defendant's motion and dismissed the complaint, prompting this appeal.

Initially, we note that Supreme Court's order fails to specify
the ground upon which it granted defendant's motion. In the event that
the court treated defendant's motion as one for summary judgment, we
find this to be error. A motion for summary judgment may not be made
prior to joinder of issue (see CPLR 3212 [a]) and, although a
motion to dismiss pursuant to CPLR 3211 may be converted to a summary
judgment motion by the court after giving the parties adequate notice (see CPLR 3211 [c]; Lockheed Martin Corp. v Aatlas Commerce, Inc.,
283 AD2d 801, 802 [2001]), the record discloses no such notice by the
court. While "the notice requirement may be obviated in cases where it
can be found that the parties 'deliberately chart[ed] a summary
judgment course'" (Henbest & Morrisey v W. H. Ins. Agency, 259 AD2d 829, 829-830 [1999], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]), the record before us does not support such a finding
. Although
plaintiff made some effort to controvert the evidenc epresented in
support of defendant's motion, we cannot conclude that it clearly
intended to chart a summary judgment course (see Wadsworth v Beaudet, 267 AD2d 727, 730 [1999])
. As
a result, we proceed to determine defendant's motion to dismiss and, in
doing so, we "must afford the pleadings a liberal construction, take
the allegations of the complaint as true and provide plaintiff the
benefit of every possible inference"
(EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Team Mktg. USA Corp. v Power Pact, LLC, 41 AD3d 939, 940 [2007]).

CPLR R. 2106 If plaintiff is an attorney, an affidavit must be used, not affirmation

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

Lessoff v 26 Ct. St. Assoc., LLC, 2009 NY Slip Op 00195 (App. Div., 2d 2009)

It was improper for the plaintiff to submit his own affirmation rather than an affidavit, since he was a party to the action (see CPLR 2106; Muniz v Katlowitz, 49 AD3d 511, 513; DeLeonardis v Brown, 15 AD3d 525, 526; Matter of Sassower v Greenspan, Kanarek, Jaffe & Funk,
121 AD2d 549).
Furthermore, the purported date of the accident
contained in the physician's report constituted inadmissible hearsay,
since the source of that information was unknown and may have been part
of the history relayed by the plaintiff (see Albrecht v Area Bus Corp., 249 AD2d 253, 255; Ginsberg v North Shore Hosp., 213 AD2d 592; Echeverria v City of New York,
166 AD2d 409, 410). Moreover, the affidavit of the office manager of
the plaintiff's law firm was improperly submitted in surreply (see CPLR 2214; Boockvor v Fischer, 56 AD3d 405; Flores v Stankiewicz, 35 AD3d 804, 805; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416,
417). In any event, that affidavit was of no probative value. Since the
plaintiff failed to produce any evidentiary facts with respect to the
date of the accident, that branch of the motion which was pursuant to
CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against
the appellant as time-barred should have been granted.

The bold is mine.

CPLR R. 3212(f) “mere hope” is not enough

CPLR R. 3212(f) Facts unavailable to opposing party

Clochessy v Gagnon, 2009 NY Slip Op 00179 (App. Div., 3d)

Defendant failed to raise a material issue of fact. Initially, we
reject defendant's assertion that Supreme Court erred in granting
plaintiffs summary judgment without permitting him to obtain further
discovery. Specifically, defendant sought to obtain the testimony of
Mayes to establish that Mayes had acquired the right-of-way by means of
abandonment or adverse possession, that she owned and used the
right-of-way exclusively and that she had conveyed exclusive title and
possession thereof to defendant [FN4]. "[I]f 'facts essential to justify opposition [to a motion for summary judgment] may exist but cannot then be stated'" (Mazzaferro v Barterama Corp., 218 AD2d 643, 643 [1995], quoting CPLR 3212 [f]), a trial court may deny a motion for summary judgment (see
CPLR 3212 [f]). However, "[t]he 'mere hope' that evidence sufficient to
defeat the motion may be uncovered during the discovery process is not
enough"
(Mazzaferro v Barterama Corp., 218 AD2d at 643, quoting Jones v Gameray, 153 AD2d 550, 551 [1989].
[*3]

Here, Mayes' anticipated
testimony would not have controverted plaintiffs' establishment of the
common right-of-way. The deeds from Mayes' predecessors to Mayes
clearly provide that the right-of-way is to be held "in common with
others" and Mayes sold the lots to the parties subject to the
subdivision map. "[A]n easement created by reference to a filed map can
be extinguished only by the united action of all lot owners for whose
benefit the easement was created" (O'Hara v Wallace, 83 Misc 2d 383, 387 [1975], mod
52 AD2d 622 [1976]). Thus, under the circumstances here, Mayes could
not have acquired the easement by abandonment or adverse possession and
could not, alone, have conveyed the easement to defendant (see generally Will v Gates, 89 NY2d 778, 784-785, [1997]; O'Hara v Wallace,
83 Misc 2d at 386-387). Hence, neither evidence of her intent to do so,
nor defendant's understanding thereof, would be sufficient to overcome
plaintiffs' demonstrated entitlement to judgment as a matter of law,
and Supreme Court properly denied defendant's request for further
discovery before granting plaintiffs' motion for summary judgment.

All the bold is mine.

CPLR § 4519 (Dead Man’s Statute); CPLR R. 4405

CPLR § 4519. Personal transaction or communication between witness and decedent or mentally ill person

CPLR R. 4405.  Time and judge before whom post-trial motion made

Peterson, Matter of, v See, 2009 NY Slip Op 29011 (App. Term, 2nd)

Initially, we note that contrary to defendant's contention,
plaintiff's posttrial motion to set aside the verdict was not untimely.
Although CPLR 4405 requires such motions to be made within 15 days
"after decision, verdict or discharge of the jury," the time limit is
not absolute, and a posttrial motion is not untimely if it is made
within an extended time period set by the trial court without objection

(see Manning v BrookhavenMem. Hosp. Med. Ctr., 11 AD3d 518
[2004]). The City Court set forth a motion schedule, and there is
nothing in the record to indicate that any objection was made to such
schedule. In any event, it does not appear that there was any prejudice
suffered as a result of the delay in presenting written arguments to
the court (see e.g. Brown v Two Exch. Plaza Partners, 146 AD2d 129 [1989]).

In support of the posttrial motion, plaintiff pointed to
numerous instances where defendant's testimony was in violation of the
Dead Man's Statute (CPLR 4519), which prohibits a party who has an
interest in the outcome of the proceeding from testifying about
communications or transactions with a decedent
. CPLR 4519 (a) provides,
in pertinent part, as follows: 

"Upon the trial of an action . . . a party or a person interested
in the event . . . shall not be examined as a witness in his own behalf
or interest . . . concerning a personal transaction or communication
between the witness and the deceased person . . . except where the
executor . . . is examined in his own behalf . . . concerning the same
transaction or communication." 

In the instant case, the burden of establishing the defense of payment was upon defendant (see Lynch v Lyons,
131 App Div 120 [1909]). The sole evidence offered in support of his
defense was his own testimony regarding his payments to the decedent,
unsupported by any documentation. This testimony clearly violated CPLR
4519.
In an action brought by the representative of a decedent's estate
on a promissory note, the maker is not permitted to testify regarding
his or her personal transactions with the deceased payee (Matter of Callister, 153 NY 294 [1897]; Alexander v Dutcher, 70 NY 385 [1877]; Cody v Hadcox,
98 App Div 467 [1904]) unless the representative "is examined in his
own behalf . . . concerning the same transaction" (CPLR 4519).
Plaintiff herein did not waive the protection of the statute nor, as
defendant suggests, was plaintiff using the statute "as a sword rather
than a shield" (Matter of Wood, 52 NY2d 139, 145 [1981]).
Plaintiff's prima facie case was established via the documentary
evidence submitted on plaintiff's direct case, which evidence did not
"open the door" to defendant's testimony regarding his transactions
with the decedent
(id.).

In the instant case, the admission of defendant's testimony was
improper as it concerned "a personal transaction or communication
between the witness and the deceased person" (CPLR 4519) and was highly
prejudicial to plaintiff. Accordingly, the trial court did not err in
granting plaintiff's motion to the extent of setting aside the verdict
and ordering a new trial.

The bold is mine.

CPLR § 4519

CPLR § 4519 Personal transaction or communication between witness and decedent or mentally ill person

Stewart v Maitland, 2009 NY Slip Op 00051 (App. Div., 2nd)

Judgment, Supreme Court, New York County (Karla Moskowitz, J.),
entered November 7, 2007, awarding plaintiff $2,866,402.75 against
defendants Maitland, Guida, International Registries and Oban,
unanimously affirmed, with costs.

Since plaintiff's counsel's opening statement at trial was not
part of the evidence, it did not "open the door" to conversations
between the decedent and the judgment debtors herein, or otherwise
constitute a waiver of the provisions of CPLR 4519, concerning the
subject memorandum of agreement
(see Matter of Wood, 52 NY2d 139 [1981]; cf. Matter of Beradini, 238 App Div 433, 435 [1933], affd 263 NY 627 [1934]).

The bold is mine.