Notice to Admit [CPLR 3123]

Fetahu v New Jersey Tr. Corp., 2018 NY Slip Op 08746 [1st Dept. 2018]

“A notice to admit is designed to elicit admissions on matters which the requesting party reasonably believes there can be no substantial dispute’ (CPLR 3123[a])” (National Union Fire Ins. Co. of Pittsburgh, Pa. v Allen, 232 AD2d 80, 85 [1st Dept 1997]). “[A] notice to admit may not be utilized to request admission of material issues or ultimate or conclusory facts,” or “facts within the unique knowledge of other parties” (Taylor v Blair, 116 AD2d 204, 206 [1st Dept 1986]). Rather, it is “only properly used to eliminate from trial matters which are easily provable and about which there can be no controversy” (Samsung Am. v Yugoslav-Korean Consulting & Trading Co., 199 AD2d 48, 49 [1st Dept 1993]). Further, because a notice to admit “is not intended as simply another means for achieving discovery,” it may not be used to obtain information in lieu of other disclosure devices (see Hodes v City of New York, 165 AD2d 168, 170 [1st Dept 1991]).

Based on these principles, plaintiff’s motion to deem admitted the matters in the second notice to admit was properly denied. In this notice, plaintiff requested that defendant admit that a brochure describing the DriveCam service, and an “Event List” purportedly containing information about the subject incident, were obtained by defendant, in the ordinary course of its business, from a third party. The notice also requested that defendant admit that the Event List reflects events recorded on the day of the incident. These requests are not proper because they involve either material issues in the case or information within the unique knowledge of a third party (see Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453 [1st Dept 1995]; Taylor, 116 AD2d at 206).

To the extent the requests seek admissions that the two documents were received in the ordinary course of defendant’s business, plaintiff could not have “reasonably believe[d],” based on the testimony of defendant’s claims manager, that there could be no “substantial dispute” on this issue (see CPLR 3123[a]; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770, 772 [2d Dept 2011]). Indeed, the claims manager indicated otherwise, testifying that he obtained the brochure by requesting it from a third party and compiled the Event List by conducting a search of the third party’s website.

The court properly granted a protective order with respect to Item Nos. 1-2, 14, and 16-20 in plaintiff’s third notice to admit because plaintiff could not have reasonably believed that there was no substantial dispute regarding these issues (see CPLR 3123[a]; Nacherlilla, 88 AD3d at 772). Item Nos. 16 and 19 are also improper insofar as they call for admissions of “legal conclusions” (see Kimmel, 214 AD2d at 453), and Item No. 14 is also improper insofar as it seeks information “within the unique knowledge of other parties” (Taylor, 116 AD2d at 206; see CPLR 3123[a]).

Item Nos. 4-12 and 15 were properly struck because they represented an improper “subterfuge for obtaining further discovery” post-filing of the note of issue (Ahroner v Israel Discount Bank of N.Y., 79 AD3d 481, 483 [1st Dept 2010] [internal quotation marks omitted]; see Taylor, 116 AD2d at 206). Item No. 3 was properly struck because whether defendant provided plaintiff with a document as part of discovery is not a fact relevant to the trial of this matter.

Item No. 13 should not have been struck because it is essentially undeniable based on prior testimony in this litigation.

3126

Shohat v Suky, 2018 NY Slip Op 08548 [1st Dept. 2018]

Defendants engaged in willful and contumacious conduct warranting the penalty of striking their answer (seeCPLR 3126; McHugh v City of New York, 150 AD3d 561 [1st Dept 2017]). They failed to comply with several court orders directing compliance with outstanding discovery requests by dates certain. The discovery responses they served only after plaintiff moved to strike consisted almost entirely of objections.

Spivey v City of New York, 2018 NY Slip Op 08557 [1st Dept. 2018]

The default on which the dismissal was based — plaintiff’s failure to respond to a motion to dismiss under CPLR 3126, allegedly due to his counsel’s mis-calendaring of the return date — was not an isolated mistake but part of a pervasive pattern of neglect in prosecuting this action evident from the record, including his persistent failure to satisfy discovery obligations for about a year and a half. As part of a pattern of “intentional[] and repeated[] fail[ure] to attend to [his obligations]” (Imovegreen, LLC v Frantic, LLC, 139 AD3d 539, 540 [1st Dept 2016]), the law-office failure leading to the default was not excusable.

Suarez v Dameco Indus., Inc., 2018 NY Slip Op 08576 [1st Dept. 2018]

The motion court providently exercised its discretion in granting plaintiff’s motion to strike Dameco’s answer for willful failure to comply with discovery orders (see CPLR 3126). Dameco’s counsel offered a barebones affirmation disclosing that Dameco was now defunct and claiming that counsel’s attempts to contact unnamed former officers of Dameco through an investigative service had been unsuccessful, which was insufficient to establish good-faith efforts to comply (see Cavota v Perini Corp., 31 AD3d 362, 364 [2d Dept 2006]; Hutson v Allante Carting Corp., 228 AD2d 303 [1st Dept 1996]; see also Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004]; compare Lee v 13th St. Entertainment LLC, 161 AD3d 631 [1st Dept 2018]). Although Dameco was apparently still in business when the action was commenced, defense counsel provided no explanation for Dameco’s failure to preserve any records relating to its repair, service, and maintenance of the elevator that allegedly caused plaintiff’s injuries, including inspection records that Dameco was statutorily required to prepare. In light of plaintiff’s showing of willful failure to comply, and since the complete absence of records impedes plaintiff’s ability to prove his case, the sanction of striking Dameco’s answer was appropriate under the circumstances.

Aiken v Liotta, 2018 NY Slip Op 08621 [2d Dept. 2018]

We agree with the Supreme Court’s denial of the defendant’s motion to enforce certain orders of preclusion against the plaintiff Rosemary Wiltshire pursuant to CPLR 3126 and, thereupon, for summary judgment dismissing the complaint insofar as asserted by that plaintiff. Despite Wiltshire’s delays, she substantially complied with the relevant discovery demands and orders, and the defendant failed to demonstrate that the delays were the product of willful and [*2]contumacious conduct (see Brannigan v Christie Overhead Door, 144 AD3d 959, 960; McDermott v Bahnatka, 83 AD3d 1014, 1015; LOP Dev., LLC v ZHL Group, Inc., 78 AD3d 1020, 1020; Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726; Zouev v City of New York, 32 AD3d 850, 851; Passarelli v National Bank of Westchester, 81 AD2d 635, 636).

3216

Element E, LLC v Allyson Enters., Inc., 2018 NY Slip Op 08915 [2d Dept. 2018]

An action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'” (Cadichon v Facelle, 18 NY3d 230, 235, quoting CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020, 1021).

Here, the court order which purported to serve as a 90-day notice pursuant to CPLR 3216 “was defective in that it failed to state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion’ by the court to dismiss the action for failure to prosecute” (Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021, quoting CPLR 3216[b][3]; see Cadichon v Facelle, 18 NY3d at 235; US Bank N.A. v Saraceno, 147 AD3d 1005, 1006; Wasif v Khan, 82 AD3d 1084, 1085). Moreover, the record contains no evidence that the court ever made a motion to dismiss, or that there was an “order” of the court dismissing the case (see Cadichon v Facelle, 18 NY3d at 236). As in Cadichon v Facelle (id.), “[i]t is evident from this record that the case was ministerially dismissed,” without the court having made a motion, and “without the entry of any formal order by the court dismissing the matter” (see US Bank N.A. v Saraceno, 147 AD3d at 1006). The procedural device of dismissing an action for failure to prosecute is a legislative creation, not a part of a court’s inherent power (see Airmont Homes v Town of Ramapo, 69 NY2d 901, 902), and, therefore, a court desiring to dismiss an action based upon the plaintiff’s failure to prosecute must follow the statutory preconditions under CPLR 3216.

Since the action was not properly dismissed pursuant to CPLR 3216, the Supreme Court should have granted that branch of the plaintiff’s motion which was to restore the action to the active calendar. To the extent that prior cases from this Court are inconsistent with the holding herein (see e.g. Stroll v Long Is. Jewish Med. Ctr., 151 AD3d 789; Duranti v Dream Works Constr., Inc., 139 AD3d 1000, 1000; Bender v Autism Speaks, Inc., 139 AD3d 989; Dai Mang Kim v Hwak Yung Kim, 118 AD3d 661, 661; Bhatti v Empire Realty Assoc., Inc., 101 AD3d 1066, 1067), henceforth they should no longer be followed.

Notably, the order purporting to be a 90-day demand was issued at a time when disclosure was complete, and when there was no evidence that the plaintiff had been dilatory in prosecuting the action. Notwithstanding the Supreme Court’s failure to issue a valid 90-day demand, the plaintiff demonstrated extreme lack of diligence in failing to file the note of issue, and in failing to prosecute the action after the case was ministerially dismissed. Given the plaintiff’s dilatory conduct, we grant that branch of the plaintiff’s motion which was for an extension of time to file a note of issue only to the extent of remitting the matter to the Supreme Court, Nassau County, for the issuance of a 90-day notice in accordance with CPLR 3216. Notably, effective January 1, 2015, the Legislature amended the statutory preconditions to dismissal under CPLR 3216, including a requirement that a court issuing the demand set forth the specific conduct constituting the neglect and that additional notice be given to the parties prior to dismissal of the action for unreasonable neglect to proceed (see CPLR 3216[a], [b][3]).

Bold is mine.

4518

Nationstar HECM Acquisition Trust 2015-2 v Andrews, 2018 NY Slip Op 08944 [2d Dept. 2018]

Here, in support of its cross motion, the plaintiff submitted, among other things, the affidavit of Stephen Craycroft, an assistant secretary of Nationstar Mortgage, LLC, who attested that the plaintiff was in possession of the note at the time of the commencement of this action. However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Craycroft under the business records exception to the hearsay rule (see CPLR 4518[a]), since Craycroft did not clearly attest that he was personally familiar with the plaintiff’s record-keeping practices and procedures (see Aurora Loan Servs., LLC v Komarovsky, 151 AD3d 924, 926; Arch Bay Holdings, LLC v Albanese, 146 AD3d 849, 853; Aurora Loan Servs., LLC v Baritz, 144 AD3d 618, 620; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952, 954; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 685; U.S. Bank N.A. v Madero, 125 AD3d 757, 758; cf. Bank of N.Y. Mellon v Lopes, 158 AD3d 662, 663-664). Inasmuch as the plaintiff’s cross motion was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Aurora Loan Servs., LLC v Mercius, 138 AD3d 650; U.S. Bank N.A. v Madero, 125 AD3d at 758).

Privilege

U.S. Bank Natl. Assn. v Lightstone Holdings LLC, 2018 NY Slip Op 08556 [1st Dept. 2018]

The motion court properly found that no subject matter waiver of the privilege had occurred. Although the privileged information sought by plaintiff is likely relevant to its claim of entitlement to priority to the guarantee pool money (U.S. Bank Natl. Assn. v Lightstone Holdings LLC, 103 AD3d 458, 459 [1st Dept 2013]), defendant Wachovia did not place the communications with its counsel “at issue,” and plaintiff fails to show that the privileged information is necessary to determine the validity of its claims (see IDT Corp. v Morgan Stanley Dean Witter & Co., 107 AD3d 451[1st Dept 2013]; Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 62 AD3d 581 [1st Dept 2009]; Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370 [1st Dept 2008]).

The motion court also properly found the defendant did not waive the privilege by its selective disclosure of certain nonprivileged documents related to the same issues (see BEW Parking Corp. v Apthorp Assoc. LLC, 141 AD3d 425 [1st Dept 2016]; Deutsche Bank Trust Co. of Ams. v Tri—Links Inv. Trust, 43 AD3d 56 [1st Dept 2007]). There is also no basis to invade the attorney client privilege of nonparty JP Morgan, and permit discovery of communications with its counsel, issued during the pendency of the related bankruptcy proceeding, years after the agreement at issue in this litigation was drafted.

Lastly, there is no evidence in the record to support plaintiff’s contention that the referee did not conduct a proper review of the documents at issue, or that the motion court improvidently exercised its discretion or issued rulings inconsistent with those of the previously assigned judge. Moreover, plaintiff has not arranged for the documents at issue to be available for this Court to review in camera (see generally Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 381 [1991]).

“strategy, not law office failure”

Soto v Chelsea W26, LLC, 2018 NY Slip Op 08170 [2d Dept. 2018]

The Supreme Court providently exercised its discretion in rejecting the plaintiff’s excuse of law office failure based on the disputed allegation that the per diem attorney hired by the plaintiff’s attorney did not appear on the return date. Regardless of whether the per diem attorney appeared on the return date, the evidence submitted by the plaintiff in support of his motion demonstrates that the plaintiff’s attorney made a conscious decision to send a per diem attorney on the motion’s return date to attempt to resolve the motion by stipulation rather than file and serve any papers in opposition. Plaintiff’s counsel’s decision not to oppose the motion constituted a strategy, not law office failure, and thus was not a reasonable excuse (see Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705; Bank of N.Y. Mellon v Colucci, 138 AD3d 1047, 1048; White v Daimler Chrysler Corp., 44 AD3d 651, 652; Everything Yogurt v Toscano, 232 AD2d 604, 606).

Finality

Aspen Specialty Ins. Co. v Ironshore Indem. Inc., 2018 NY Slip Op 08253 [1st Dept. 2018]

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered January 29, 2018, which denied defendant Ironshore Indemnity Incorporated (Ironshore’s) motion for leave to renew a prior motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about March 27, 2018, which, inter alia, denied Ironshore’s motion to reargue the court’s January 29, 2018 decision, unanimously dismissed, without costs, as taken from a non-appealable order.

The court properly denied Ironshore’s renewal motion on the ground that the parties’ rights and responsibilities under the respective insurance contracts, or specifically, Alphonse Hotel’s entitlement to additional insured status under the Ironshore policy, was conclusively adjudicated by our decision in Aspen Specialty Ins. Co. v Ironshore Indem. Inc. (144 AD3d 606, 606 [1st Dept 2016]), an order from which Ironshore did not appeal. At this juncture, the time to appeal has expired, and the court properly determined that renewal based upon the Court of Appeals decision in Burlington Insurance Company v NYC Tr. Auth. (29 NY3d 313 [2017]), is no longer available (see Matter of Huie (Furman), 20 NY2d 568, 572 [1967]).

no appeal from a default

Matter of Fatima K. v Ousmane F., 2018 NY Slip Op 08431 [1st Dept., 2018]

The court correctly considered the father’s untimely appearance at the custody hearing, without explanation, and entered its order on default (see Matter of Nyree S. v Gregory C., 99 AD3d 561, 562 [1st Dept 2012], lv denied 20 NY3d 854 [2012]; Matter of Anita L. v Damon N., 54 AD3d 630, 631 [1st Dept 2008]). As the father did not avail himself of the opportunity to vacate his default, and no appeal lies from an order entered upon the aggrieved party’s default, the appeal is dismissed (see CPLR 5511; Nyree S., 99 AD3d at 562).

Mailing

CitiMortgage, Inc. v Moran, 2018 NY Slip Op 08435 [1st Dept., 2018]

Plaintiff failed to establish a presumption that it properly served defendant with RPAPL 1304 notice through proof either of actual mailing or of a standard office practice or procedure for proper addressing and mailing (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Its business operations analyst testified at the hearing on this issue that she was familiar with plaintiff’s record keeping practices and procedures. However, she did not testify either that she was familiar with plaintiff’s mailing procedures or that she was personally aware that RPAPL 1304 notices had been mailed to defendant (see HSBC Bank USA v Rice, 155 AD3d 443, 444 [1st Dept 2017]; HSBC Bank USA, N.A. v Gifford, 161 AD3d 618 [1st Dept 2018]). Nor does the fact that some of the RPAPL 1304 notices admitted into evidence at the hearing bear a certified mail number suffice to raise the presumption of proper service (Nationstar Mtge., LLC v Cogen, 159 AD3d 428, 429 [1st Dept 2018]).

Insanity toll: CPLR 208

Matter of Brigade v Olatoye, 2018 NY Slip Op 08437 [1st Dept., 2018]

The medical records submitted on the petition present an issue of fact as to whether petitioner possessed “an over-all ability to function” during the relevant period (see McCarthy v Volkswagen of Am. , 55 NY2d 543, 548 [1982]). Thus, a hearing must be held to determine whether the statute of limitations on this untimely filed proceeding should be tolled for insanity (CPLR 208; see Santana v Union Hosp. of Bronx , 300 AD2d 56, 58 [1st Dept 2002]).