App Div 1st declines to decide whether the Sup Ct has the power to review a damages verdict using the CPLR § 5501(c) Std

CPLR § 5501 Scope of review

(c) Appellate division.
The appellate division shall review questions of law and questions of
fact on an appeal from a judgment or order of a court of original
instance and on an appeal from an order of the supreme court, a county
court or an appellate term determining an appeal. The notice of appeal
from an order directing summary judgment, or directing judgment on a
motion addressed to the pleadings, shall be deemed to specify a
judgment upon said order entered after service of the notice of appeal
and before entry of the order of the appellate court upon such appeal,
without however affecting the taxation of costs upon the appeal. In
reviewing a money judgment in an action in which an itemized verdict is
required by rule forty-one hundred eleven
of this chapter in which it is contended that the award is excessive or
inadequate and that a new trial should have been granted unless a
stipulation is entered to a different award, the appellate division
shall determine that an award is excessive or inadequate if it deviates
materially from what would be reasonable compensation.

Delacruz v Port Auth. of N.Y. & N.J., 2009 NY Slip Op 04124 (App. Div., 1st, 2009)

The stipulated increase in damages for past pain and suffering, undertaken at the court's urging and as an alternative
to a new trial, was warranted (see Newman v Aiken, 278 AD2d
115 [2000]). In reviewing plaintiff's motion to set aside the award of
past pain and suffering, Supreme Court employed the "deviates
materially from reasonable compensation" test specified by CPLR
5501(c). That statute provides the Appellate Division with the power to
review a damages verdict under that standard; it does not expressly
provide Supreme Court with similar review power. Whether Supreme Court
was authorized to review the award for past pain and suffering under
the standard provided by CPLR 5501(c) or was required to review the
award under a more restricted standard, e.g. "shocks the conscience" (compare Ashton v Bobruitsky, 214 AD2d 630 [1994]; Prunty v YMCA of Lockport, Inc., 206 AD2d 911 [1994] and Cochetti v Gralow, 192 AD2d 974 [1993], with Lauria v New York City Dept. of Environmental Protection, 152 Misc 2d 543 [1991]; see Siegel, NY Practice §
407 [4th ed]), is an issue we need not decide. Under our own review
pursuant to CPLR 5501(c), we conclude that the jury's award for past
pain and suffering of $25,000 deviates materially from reasonable
compensation, and that, as Supreme Court found, $75,000 is reasonable
compensation (see generally Donatiello v City of New York, 301 AD2d 436 [2003]).

This case is interesting for what the Court declined to decide.

The bold is mine.

Qualified Privilege and Hearsay

Garcia v Puccio, 2009 NY Slip Op 04121 (App. Div., 1st, 2009)

On a prior appeal in this action (17 AD3d 199 [2005]), we found that
plaintiff, a teacher, stated a cause of action for defamation where he
alleged that defendant Puccio told a student's parent that plaintiff
had been accused of corporal punishment before. We noted that
defendants' claims of truth and qualified privilege were affirmative
defenses to be raised in the answer and that "[d]efendants may then
move for summary judgment on any such defense available to them and,
upon their making a prima facie showing of truthfulness or qualified
privilege, the burden would shift to plaintiff" (id. at 201).

Defendants' summary judgment motion included Ms. Puccio's
unequivocal denial of making the subject statement, establishing a
prima facie showing of a lack of the requisite publication of a
defamatory statement (see Parker v Cox, 306 AD2d 55 [2003]; Snyder v Sony Music Entertainment, Inc.,
252 AD2d 294, 298 [1999]). In opposition, plaintiff failed to establish
a triable issue of fact as to whether the alleged statement was made
and published (see id.; see also Alvarez v Prospect Hosp.,
68 NY2d 320, 324 [1986]). Rather, plaintiff offered only hearsay, i.e.,
an out-of-court statement by the parent's mother that Ms. Puccio had
made the alleged statement. The statement by the mother that Ms. Puccio
made the statement was offered for its truth (i.e., that Ms. Puccio had
made the statement). The only statement Ms. Puccio admitted making,
that she told the parent that there were "problems" or "problemas" with
plaintiff, was a true statement made in response to a direct question,
without any elaboration, was not susceptible of a defamatory meaning
and did not constitute defamation (see Dillon v City of New York,
261 AD2d 34, 38 [1999]). In any event, the statement would be protected
by a qualified privilege, having been made by a high school principal
to a student's parent who had a [*2]common interest in the subject matter of the conversation (see Garcia v Puccio, 17 AD3d at 201; Hoesten v Best, 34 AD3d 143, 157-158 [2006]).

The bold is mine.

“At issue” waiver of privilege

CPLR § 3101(c)  Attorney's work product. The work product of an attorney shall not be obtainable.

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

Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 2009 NY Slip Op 04099 (App. Div., 1st, 2009)

We find no merit to defendant's argument that privileged materials
relating to and created after commencement of the Doctor's Hospital
Action have been put "in issue" by this litigation and are therefore
discoverable. Such argument fails to recognize that nothing that
plaintiff's attorneys could have said or done in the prior lawsuit
could have possibly affected plaintiff's reliance on defendant's
allegedly erroneous advice given years earlier in connection with the [*2]formation
of the D5 Trust. " At issue' waiver of [the attorney-client] privilege
occurs where a party affirmatively places the subject matter of its own
privileged communication at issue in litigation, so that invasion of
the privilege is required to determine the validity of a claim or
defense of the party asserting the privilege, and application of the
privilege would deprive the adversary of vital information" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56,
63 [2007]). While any communications between plaintiff and its
attorneys in the Doctor's Hospital Action that evaluated defendant's
prior advice in the allegedly bungled D5 Trust transaction are
certainly relevant to the issue of defendant's alleged malpractice,
plaintiff disavows any intention to use such communications and
defendant fails to show that any such communications are necessary to
either plaintiff's claim or its defense (see id. at 64 [relevance alone insufficient to put privileged materials "at issue"; "if that were the case, a
privilege would have little effect"]; see also Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370,
374 [2008]). Nor does the question of the reasonableness of the
settlement amount that plaintiff seeks to recover, without more, put
plaintiff's privileged communications with its attorneys concerning the
settlement "in issue" (Deutsche Bank, 43 AD3d at 57). No reason
appears why the reasonableness of the settlement cannot be determined
with the copious materials that defendant has already received,
including otherwise privileged communications, dating from before the
commencement of the Doctor's Hospital Action. We have considered
defendant's other arguments and find them unpersuasive.

The bold is mine.

CPLR R. 6312 Preliminary Injunction requires undertaking; is not final disposition

CPLR R. 6312 Motion papers; undertaking; issues of fact

(b) Undertaking. Except as provided in section 2512,
prior to the granting of a preliminary injunction, the plaintiff shall
give an undertaking in an amount to be fixed by the court, that the
plaintiff, if it is finally determined that he or she was not entitled
to an injunction, will pay to the defendant all damages and costs which
may be sustained by reason of the injunction…

Pamela Equities Corp. v 270 Park Ave. Café Corp., 2009 NY Slip Op 04166 (App. Div., 1st, 2009)

The court exercised its discretion in a provident manner in granting
the injunctive relief since plaintiff demonstrated a likelihood of
success on the merits, irreparable injury based on further damage to
the building if the necessary repairs are not made and that a balancing
of the equities weighs in its favor (see generally Doe v Axelrod, 73 NY2d 748, 750 [1988]; see also Huron Assoc. LLC v 210 E. 86th St. Corp., 18 AD3d 231 [2005]; 1500 Broadway Chili Co. v Zapco 1500 Inv., 259
AD2d 257 [1999]). However, because CPLR 6312(b) requires that plaintiff
post an undertaking in an amount to be fixed by the court, the matter
is remanded to the motion court to set an amount that reflects the
damages that defendant may incur (see Visual Equities v Sotheby's, Inc., 199 AD2d 59 [1993]).

Although the injunctive relief was appropriately granted, "[a]
preliminary injunction is a provisional remedy. Its function is not to
determine the ultimate rights of the parties, but to maintain the
status quo until there can be a full hearing on the merits" (Residential Bd. of Mgrs. of Columbia Condominium v Alden,
178 AD2d 121, 122 [1991]). Thus, to the extent the motion court's order
indicated that it was a final disposition, it was in error.

The bold is mine.

CPLR § 3101(d)

CPLR § 3101 Scope of disclosure

(d) Trial preparation

Hernandez v Vavra, 2009 NY Slip Op 04161 (App. Div., 1st, 2009)

In light of the inconsistency between the information contained on the
face of defendants' CPLR 3101(d) notice pertaining to their expert
neuropsychologist, and the substance of the expert's proposed testimony
as clarified on voir dire, the trial court providently exercised its
discretion in permitting the neuropsychologist to testify as to the
results of his interview of plaintiff, while precluding him from
testifying as to the results of neuropsychological tests he performed
on plaintiff (see Inwood Sec. Alarm, Inc. v 606 Rest., Inc., 35 AD3d 194 [2006]).

CPLR § 205(a)

CPLR § 205 New action by plaintiff

As you may recall, CPLR §  205(a) was recently amended giving failure to prosecute dismissals the benefit of 205(a)'s tolling provision, provided certain conditions are satisfied.  This amendment was the subject of a recent NYLJ article by David Siegel.  I posted about about it here.  Justice Lehner addressed this issue in one of the first cases to meet the issue head on.

Stora v City of New York, 2009 NY Slip Op 29213 (Sup Ct, NY County, 2009)

Here I dismissed the initial action without making any finding of a
pattern of delay. However, I believe that a judge hearing the second
action can review the record of the initial action to determine such
issue when no adjudication thereon was made in that action. From an
examination of the papers submitted on these motions, it does not
appear that plaintiff's defaults were wilful or in bad faith and rise
to the level of conduct that warrants the type of sanction imposed in
Andrea. Hence, defendants' application that the court should find that
the dismissal in September 2008 was for lack of prosecution, and that
thus the action is time barred, is denied.

Critics of the Amendment have questioned why it was added to §
205 (a), rather than § 3216, which details the statutory means of
obtaining a dismissal for want of prosecution. See, Siegel "Amendment
Bars 'Neglect to Prosecute' Dismissal," NYLJ, Sept. 15, 2008, p. 4, c.
4; New York State Bar Association's Committee on Civil Practice Law and
Rules memorandum dated July 1, 2008, in opposition to the Amendment.
The reason would appear to be that by the inclusion of the word
"otherwise" in the Amendment, the legislature intended the requqisite
finding of delay be made not only in cases of dismissals under § 3216,
but also in all cases where want of prosecution is the basis for the
prior dismissal. Such situations would thus include dismissals i) for
failure to provide discovery, as in Andrea; ii) for failure to appear
for trial, as in Macaluso v. Statfeld, 295 AD2d 147 (1st Dept. 2002)
and Morris v. Start, 268 AD2d 787 (3rd Dept. 2000); and iii) under CPLR
3404, which specifically states that a failure to restore a case to the
calendar within a year after being marked "off" is a "neglect to
prosecute" [see, Pomerantz v. Cave, 10 AD2d 569 (1st Dept. 1960);
Siegel; New York Practice, 4 ed., § 376].

While it may in future cases be argued that by inserting the Amendment in

§ 205 (a) it was the intent of the legislature to limit the
requirement for a finding of a general pattern of delay to situations
where a plaintiff was seeking to obtain the benefit of the six month
extension, and not to invalidate all dismissals not containing the
finding, that is certainly not clear from the sponsoring memorandum
submitted in support of the bill (A750) containing the proposed
amendment to § 205 (a), where Assemblyman Keith Wright stated the
following:

PURPOSE OR GENERAL IDEA OF BILL:

Establishes a requirement that when a dismissal is one for neglect to prosecute an [*4]action
the judge must set forth on the record the specific conduct
constituting the neglect. The conduct specified must demonstrate a
general pattern of delay in proceeding with the action before a neglect
to prosecute dismissal is warranted.

JUSTIFICATION:

This
bill sets forth a resolution to a persistent problem within our courts
regarding dismissal for neglect to prosecute the action.

The
intent of CPLR § 205 (a) has been misconstrued allowing for many cases
to be dismissed on the basis of neglect to prosecute. The law is
presently unclear with respect to what specifically constitutes a
neglect to prosecute particularly where it falls outside Rule 3216.

Amending CPLR § 205 (a) to provide uniformity would reestablish the original legislative intent of this chapter.

An identical memorandum was submitted by Senator Dale Volker in support of the Senate bill (S2677).

In any event, it would seem that any defendant concerned about a
plaintiff obtaining the benefit of a § 205 (a) extension after a
dismissal on any grounds that could be deemed to be a neglect of
prosecution would be wise to request at the time of dismissal that the
court issue an adjudication on the issue of general delay.

While it has been suggested that the adoption of the Amendment
was an attempt to legislatively overrule the 2005 Court of Appeals
decision in Andrea, that would not appear to be the specific intention
of the Assembly sponsor as he had introduced a similar bill in each
session of the legislature since 1993. It is noted that,
notwithstanding the opposition of the aforesaid State Bar Association
Committee, the Amendment passed with nary a negative vote in either
chamber of the legislature.

Although judgments on default can have res judicata effect
[see, Lazides v. P & G Enterprises, 58 AD3d 607 (2nd Dept. 2009);
Allstate Insurance Company v. Williams, 29 AD3d 688 (2nd Dept. 2006);
Robbins v. Growney, 229 AD2d 356 (1st Dept. 1996)], as can an order of
preclusion [see, Strange v. Montefiore Hospital and Medical Center [59
NY2d 737, 739 (1983)], defendants have not raised that issue herein
(tr. pp. 12-13). In any event, it has been held that "[w]here a
plaintiff's noncompliance with a disclosure order does not result in a
dismissal with prejudice, or an order of preclusion or summary judgment
in favor of defendant so as to effectively close plaintiff's proof,
dismissal resulting from noncompliance is not a merits determination so
as to bar commencement of a second action" [Maitland v. Trojan Electric
& Machine Co., Inc., 65 NY2d 614, 615-616 (1985)]. See also,
Daluise v. Sottile, supra, at p. 802; Downtown Acupuncture P.C. v.
State Farm Mutual Automobile Ins. Co., 20 Misc 3d 137 (A), 2008 WL
2831979. (App. Term 2nd & 11th Districts).

In conclusion, since I have found that my dismissal of the
initial action cannot be said to have been based on a lack of
prosecution, the motions of defendants to dismiss are denied. This
decision constitutes the order of the court.

Look for posts tomorrow. Maybe later today

 A lot of good stuff has come out in the past few weeks, but I've been busy lawyering, tinkering with my other blog and trying to figure out wordpress, among other things. Today, I built a house.  That was a gigantic pain in the ass.  You see those stairs to the right of the dog?  He is petrified of going up or down them.  Petrified. 

A Look at the Appellate Division (1st) from the Inside

Tomorrow's May 13th's New York Law Journal has a great article on the inner-workings of the Appellate Division.  Justice David B. Saxe, of the Appellate Division, First Department, writes about how the Justices prepare for arguments, procedural issues, and how the senority affects the order that the Justices enter the courtroom.  The title of the article is: How We Operate: An Inside Look at the Appellate Division, First Department. 

And best of all…the article is free.

Here are some excerpts.

A new justice cannot help but immediately notice that virtually every
formal act of the court, and most informal acts as well, require
recognition of the justices' seniority. For purposes of constituting
panels, the court's presiding justice (P.J.) is followed by the other
six "constitutional"¹ justices in the order in which they were designated to the court. They are followed by the certificated² justices and the "additional justices,"³
in the order in which they were designated to the court. Notably, for
other purposes, such as the assignment of chambers, seniority is solely
by date of designation to the court, and it is irrelevant whether a
justice is certificated. Seniority also dictates where each justice
sits on the bench for oral argument, in the conference room with the
panel after argument, in the conference room with the full bench, and
to some extent even in the lunch room.

It is the tradition at the First Department that most internal
documents, such as memoranda, calendars and schedules, refer to the
justices by their initials rather than their full names, presumably for
the sake of brevity. For those documents, I am not David B. Saxe, I am
DBS. This procedure may be useful in ensuring there is no confusion
between two justices who have the same or similar last names, such as
Justices David Friedman (DF) and Helen E. Freedman (HEF); however, it
can be singularly problematic where two justices' initials are
identical, as with Richard T. Andrias and Rolando T. Acosta.
Nevertheless, the tradition is so firmly etched into the court's
procedures that it is the justices who must be flexible; Justice
Andrias, as the more senior justice, is indicated by his initials RTA,
while Justice Acosta, as the more junior justice, must forgo the use of
his middle initial, and be known by the initials RA.

…

Preparing for Argument: In advance of each panel
sitting, each justice on the panel will be provided with the briefs and
records of the cases that are scheduled for that particular panel day.
Each justice is advised to maintain an area in chambers to put the
briefs and records for the next upcoming sitting date, where they will
be available for easy access, and be placed in the order that they will
appear on that day's calendar.

Chambers will also receive, in advance of the calendar date, a bench memo for most⁵
appeals on that calendar, each prepared by a court attorney – that is,
one of a pool of attorneys in our law department whose primary function
in the court is the preparation of such bench memos. These bench memos,
often referred to as "reports," consist of a complete discussion of the
facts, the decision of the lower court, the contentions on appeal, the
relevant law, and a legal analysis. The court attorney will also
provide a recommendation as to the suggested disposition of the appeal
(i.e., affirmance, reversal, modification, etc.) and usually the bench
memo will be accompanied by a short memorandum decision. Due to the
internal procedures followed by our law department, a senior
supervising court attorney who reviews the bench memo and
recommendation may differ with the recommendation or reasoning of the
court attorney.

…

Procedures After Argument: After a brief break, the
panel convenes in our second floor conference room to vote on that
days' appeal calendar. If the P.J. is on the panel, he or she is seated
in the center seat of our long rectangular conference table, with the
two most senior justices to his immediate right and the two most junior
justices opposite them. If the P.J. is not on that day's panel, the
J.P. of the panel sits in the seat to the immediate right of the center
seat, the next two senior justices on the panel sit to the immediate
right of the J.P., and the two most junior justices sit in the two
seats directly opposite the seats occupied by the J.P. and the next
most senior justice.

The justices generally bring to conference a folder containing their
court attorney reports, a copy of that day's calendar on which is noted
the initials of the justice assigned as the reporting justice for each
appeal, and a loose-leaf binder that contains what we call our "bible
sheets." A bible sheet is created for each appeal, and it contains the
name of the case and its appeal number, the names of counsel, the
initials of the court attorney who prepared the report and the names of
the justices who sat on that case, with the reporting justice's name
indicated by asterisks. As is perhaps suggested by its name, the bible
sheet becomes the framework for the work that follows.

CPLR R. 3212

Robinson v Yeager, 2009 NY Slip Op 03710 (App. Div., 2nd, 2009)

The defendant failed to meet his prima facie burden of showing that the
plaintiff did not sustain a serious injury within the meaning of
Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79
NY2d 955, 956-957). In support of his motion, the defendant relied
upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell and
Dr. Rene Elkin. In those reports, Dr. Elkin noted significant
limitation in the plaintiff's cervical spine, and Dr. Purcell noted
significant limitation in the plaintiff's right shoulder (see Giacomaro v Wilson, 58 AD3d 802; Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472).
Since the defendant failed to meet his prima facie burden, it is
unnecessary to decide whether the papers submitted by the plaintiff in
opposition were sufficient to raise a triable issue of fact (see Giacomaro v Wilson, 58 AD3d 802; Coscia v 938 Trading Corp., 283 AD2d 538).

The bold is mine.

CPLR § 213

CPLR § 213 Actions to be commenced within six years

Prand Corp. v County of Suffolk, 2009 NY Slip Op 03708 (App. Div., 2nd, 2009)

blockquoteA cause of action for rescission based on mistake runs from the date of the alleged mistake or actionable wrong (see CPLR 213[6]; Zavaglia v Gardner, 245
AD2d 446). Here, the cause of action for rescission of the contract
accrued on the date that the price was set in the contract, which was
the date when the contract was fully executed (see Zavaglia v Gardner, 245 AD2d 446; cf. First Natl. Bank of Rochester v Volpe, 217
AD2d 967, 968). Consequently, the cause of action seeking rescission of
the contract of sale on the ground of mutual mistake, which was brought
more than six years after the contract was fully executed, was untimely
(see Zavaglia v Gardner, 245 AD2d 446).

A cause of action alleging fraud is timely if it is commenced
either within six years from the time of the fraud, or within two years
after the plaintiff discovers, or with reasonable diligence could have
discovered, the fraud (see CPLR 213[8]; Pericon v Ruck, 56 AD3d 635, 636; Oggioni v Oggioni, 46 AD3d 646, 648; Town of Poughkeepsie v Espie, 41 AD3d 701, 705; Shannon v Gordon, 249
AD2d 291, 292). The test as to when a plaintiff, with reasonable
diligence, could have discovered an alleged fraud is an objective one (see Prestandrea v Stein, 262
AD2d 621, 622). Here, notice to the plaintiff of the Attorney General's
action in 2002 clearly triggered a duty on the part of the plaintiff to
inquire as to potential fraud with respect to the contract of sale (see Shannon v Gordon, 249 AD2d at 292; cf. Pericon v Ruck, 56
AD3d at 636). Inasmuch as the plaintiff did not commence the instant
action until more than six years after the time of the alleged fraud,
and more than two years after the plaintiff, with reasonable diligence,
could have discovered the alleged fraud, the cause of action for
rescission based upon fraudulent inducement is barred by the statute of
limitations (see CPLR 213[8]; Oggioni v Oggioni, 46 AD3d at 648).blockquote

The bold is mine.