3216

Butler v Knights Collision Experts, Inc., 2018 NY Slip Op 06474 [1st Dept. 2018]

Plaintiffs failed to establish that defendants’ conduct during discovery was willful, contumacious or in bad faith (see Lee v 13th St. Entertainment LLC, 161 AD3d 631 [1st Dept 2018]; Palmenta v Columbia Univ., 266 AD2d 90 [1st Dept 1999). At the time the motion was made, defendants were in violation of a single court order. Moreover, the court improvidently exercised its discretion in imposing the sanction nine months after plaintiffs brought their motion, when discovery had been completed and the note of issue filed.

Choice of law: procedure and substance

Royal Park Invs. SA/NV v Morgan Stanley, 2018 NY Slip Op 06695 [1st Dept. 2018]

“[C]ourts will generally enforce choice-of-law clauses” (Ministers & Missionaries Benefit Bd. v Snow, 26 NY3d 466, 470 [2015]). However, “when parties include a choice-of-law provision in a contract, they intend application of only that state’s substantive law” (Id. at 474 [internal quotation marks omitted]). In other words, “[c]hoice of law provisions typically apply to only substantive issues” (Portfolio Recovery Assoc., LLC v King, 14 NY3d 410, 416 [2010]).

Unlike substantive law, “matters of procedure are governed by the law of the forum state” (FIA Leveraged Fund Ltd. v Grant Thornton LLP, 150 AD3d 492, 496 [1st Dept 2017]). The question of whether a plaintiff has standing “is a procedural matter” (O’Neill v Warburg, Pincus & Co., 39 AD3d 3d 281 [1st Dept 2007]; see also Mertz v Mertz, 271 NY 466, 473 [1936] [“The law of the forum determines … the capacity of parties to sue or to be sued”]).

CPLR 5003-a

Howell v City of New York, 2018 NY Slip Op 07178 [1st Dept. 2018]

Once defendants failed to timely pay all sums due to plaintiff within ninety days of his tender of the requisite settlement documents (see CPLR 5003-a[b]), plaintiff was entitled to a judgment “for the amount set forth in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered” (CPLR 5003-a[e]). The parties no longer dispute that defendants did not timely pay plaintiff, they have stipulated to the amount of costs, disbursements, and interest plaintiff is due, and defendants have paid plaintiff that sum. Plaintiff is therefore not entitled to any further relief or monetary award.

Further, CPLR 5003-a(e) is specific about what may be contained in a judgment against a settling defendant who has not timely paid a plaintiff his settlement proceeds. Given the absence in that provision of any reference to prejudgment interest, there is no basis for departing from the “irrefutable inference … that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240).

We reject plaintiff’s argument that the term “interest,” as used in the stipulation of settlement, is unclear. Given that plaintiff was not entitled to postjudgment interest – or, for that matter, a judgment – at the time that he executed the stipulation of settlement, “interest” could [*2]not have referred to anything other than prejudgment interest. Coupled with his allocution to the settlement and the subsequent stipulation that no further costs or sanctions would be sought, we find that plaintiff unambiguously waived any right he may have had to pre-judgment interest.

Finally, since the parties have already stipulated that any judgment plaintiff was authorized by CPLR 5003-a(e) to enter has already been satisfied, and the record and briefs confirm that plaintiff has been paid all monies due to him, there is no need to grant plaintiff leave to enter a new judgment in place of the 2014 judgment.

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]).

CPLR 3213

JFURTI, LLC v First Capital Real Estate Advisors, L.P., 2018 NY Slip Op 06493 [1st Dept. 2018]

On the issue of the applicability of CPLR 3213, the documents herein are not “instruments for the payment of money only,” as contemplated by the statute, because they contain obligations beyond just the payment of money and require that payment be made in the future for an unidentified amount (see Weissman v Sinorm Deli, 88 NY2d 437, 444 [1996]). Moreover, the guaranty does not qualify because it is a guaranty for both payments and performance (Dresdner Bank AG. [N.Y. Branch] v Morse/Diesel, Inc., 115 AD2d 64, 68 [1st Dept 1986]). However, when a “plaintiff has mistaken his remedy and CPLR 3213 is in fact not available, the action typically should not be dismissed but simply converted to ordinary form as the statute provides,” unless the court orders otherwise (Weissman, 88 NY2d at 445; CPLR 3213). If the claims can be decided on the merits, the court can grant summary judgment accordingly (id. at 445).

Frye

Newton v State of New York, 2018 NY Slip Op 06494 [1st Dept. 2018]

Claimant contends that the testimony of the State’s economist is inadmissible because the methodology he used to arrive at the “theory” that the prior conviction reduced claimant’s employability and earnings capacity has not been shown to be generally accepted in the relevant community under Frye v United States (293 F 1013 [1926]). This argument is unpreserved (see Matter of State of New York v David S., 136 AD3d 445, 446 [1st Dept 2016]). In any event, a Frye analysis is inapplicable because the theory is not “scientific” (see People v Brooks, 31 NY3d 939, 941 [2018]; Wahl v American Honda Motor Co., 181 Misc 2d 396, 398-399 [Sup Ct, Suffolk County 1999]). Further, even if it is scientific, the challenge against it does not implicate a Frye analysis, but rather, “the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case” (Parker v Mobil Oil Corp., 7 NY3d 434, 447 [2006]).

CPLR 3404 and a pure question of law

Thompkins v Ortiz, 2018 NY Slip Op 06503 [1st Dept. 2018]

Plaintiff challenges the applicability of CPLR 3404, on which the motion court apparently relied in denying her motion to restore the case to the calendar, for the first time on appeal. Since it is a legal argument that appears on the face of the record and could not have been avoided if brought to defendant’s attention at the proper juncture, we will review it (see Chateau d’If Corp. v City of New York, 219 AD2d 205, 209 [1st Dept 1996], lv denied 88 NY2d 811 [1996]).

The order that marked the case off the calendar directed plaintiff to provide additional discovery. It thus effectively vacated the note of issue and returned the case to pre-note of issue status (see Matos v City of New York, 154 AD3d 532[1st Dept 2017]). As CPLR 3404 does not apply to cases in which either no note of issue has been filed or the note of issue has been vacated (Turner v City of New York, 147 AD3d 597 [1st Dept 2017]), it does not apply to this case.

1625 Mkt. Corp. v 49 Farm Mkt., Inc., 2018 NY Slip Op 06498 [1st Dept. 2018]

Defendant’s argument, raised for the first time on appeal, that plaintiff’s counsel violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 4.2(a) (“Communication with person represented by counsel”) does not pose a pure question of law, and will not be considered (see Gonzalez v New York City Health & Hosps. Corp., 29 AD3d 369, 370 [1st Dept 2006]).

Referee’s findings

33-37 Farrington, LLC v Global Universal Group, Ltd., 2018 NY Slip Op 07081 [2d Dept. 2018]

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” (Flagstar Bank, F.S.B. v Konig, 153 AD3d 790, 790-791; see Thomas v Thomas, 21 AD3d 949, 949). Here, the Referee’s findings with regard to the amount due under the note and mortgage are supported by the record. Any error in the admission of hearsay testimony at the hearing was harmless (see CPLR 2002; Barracato v Camp Bauman Buses, 217 AD2d 677, 678). Accordingly, we agree with the Supreme Court’s determination granting SDF’s motion to confirm the Referee’s report.

Excel Capital Group Corp. v 225 Ross St. Realty, Inc.,
2018 NY Slip Op 07291 [2d Dept. 2018]

The Supreme Court, as the ultimate arbiter of the dispute with the power to reject the referee’s report and make new findings (seeCPLR 4403), considered the defendant’s evidence and correctly concluded that the defendant’s contention was without merit (see Deutsche Bank Natl. Trust Co. v Zlotoff, 77 AD3d 702; Adelman v Fremd, 234 AD2d 488; Stein v American Mtge. Banking, 216 AD2d 458; Shultis v Woodstock Land Dev. Assoc., 195 AD2d 677; cf. Aurora Loan Servs., LLC v Taylor, 114 AD3d at 629-630; Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282).

Mailing

Deutsche Bank Natl. Trust Co. v Heitner, 2018 NY Slip Op 07090 [2d Dept. 2018]

In opposition, the plaintiff submitted only a copy of the required notice, but failed to submit any evidence that the notice was mailed in the manner required by the statute. Specifically, the plaintiff did not submit “an affidavit of service, . . . proof of mailing by the post office, evincing [*2]that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]” (CitiMortgage, Inc. v Pappas, 147 AD3d at 901 [citations omitted]), or “proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” (Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014). Thus, the plaintiff failed to demonstrate that it strictly complied with the requirements of RPAPL 1304, notwithstanding the label on the notice stating “Certified Article Number” and “Senders Record” and listing a 20-digit number on the top of the letter (see Bank of N.Y. Mellon v Zavolunov, 157 AD3d 754, 756; Citibank, N.A. v Wood, 150 AD3d 813, 814).

Venue CPLR 510, 511

Sowell v Gansburg, 2018 NY Slip Op 06958 [2d Dept. 2018]

The defendant moved pursuant to CPLR 510(2) and 511(a) to change the venue of the action from Kings County to New York County on the ground that an impartial trial could not be obtained in Kings County. The Supreme Court granted the defendant’s motion. The plaintiff appeals.

To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed (see Rutherford v Patel, 129 AD3d 933, 933-934; Pruitt v Patsalos, 96 AD3d 924; Matter of Michiel, 48 AD3d 687, 687). A motion to change venue pursuant to CPLR 510(2) is addressed to the sound discretion of the trial court (see Milazzo v Long Is. Light. Co., 106 AD2d 495, 496), and its determination will not be disturbed absent an improvident exercise of discretion (see Lisa v Parikh, 131 AD3d 1135, 1136).

Under the particular circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendant’s motion pursuant to CPLR 510(2) to change the venue of this action from Kings County to New York County in order to avoid any appearance of impropriety (see Lisa v Parikh, 131 AD3d at 1136; Rutherford v Patel, 129 AD3d at 934; Pruitt v Patsalos, 96 AD3d 924).