You Can’t Be Forced to Give What You Don’t Have (Discovery)

I can't begin to tell you how often I see attorneys demanding that the other side produce items that don't exist.

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

Gottfried v Maizel, 2009 NY Slip Op 09619 (App. Div., 2nd, 2009)

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in only partially granting the plaintiff's motion to compel disclosure. The defendant could not be compelled to produce records, documents, or information that were not in his possession, or did not exist (see Argo v Queens Surface Corp., 58 AD3d 656; Maffai v County of Suffolk, 36 AD3d 765; Sagiv v Gamache, 26 AD3d 368, 369), or that were privileged (see Logue v Velez, 92 NY2d 13). Contrary to the plaintiff's arguments, the Preliminary Conference Order dated February 13, 2008, did not preclude the court from reviewing the propriety of his discovery demands or the adequacy of the defendant's response to those demands.

The bold is mine.

False Start–CPLR § 304

CPLR § 304. Method of commencing action or special proceeding

Goldenberg v Westchester County Health Care Corp., 2009 NY Slip Op 09616 (App. Div., 2nd, 2009) [Edit: 4/7/11. Affirmed by Goldenberg v Westchester County Health Care Corp., 2011 NY Slip Op 02075 (Ct. App. 2011)

The plaintiff served the summons and complaint upon the defendants in this malpractice action without ever filing them or obtaining an index number and paying the filing fee for the action. Accordingly, the action was never validly commenced (see CPLR 304). Following the expiration of the applicable statute of limitations, the defendants moved to dismiss the complaint as time-barred, and the plaintiff cross-moved, inter alia, for leave to file the summons and complaint nunc pro tunc. The Supreme Court correctly granted the defendants' motion and denied the plaintiffs' cross motion.

Contrary to the plaintiff's contention, the defendants raised timely objections to the plaintiff's failure to file and to the untimeliness of the action, since they asserted affirmative defenses regarding lack of jurisdiction and the expiration of the statute of limitations in their amended verified answer (see CPLR 3211[e]; see generally Harris v Niagara Falls Bd. of Educ., 6 NY3d 155, 159; cf. Sirkis v Cohen, 23 AD3d 369). Similarly, the defendants were not obligated to move to dismiss the action within 60 days following the service of their answer pursuant to CPLR 3211(e), since their objection was not based on improper service (see Sangiacomo v County of Albany, 302 AD2d 769, 772). Indeed, the plaintiff was free to move pursuant to CPLR 3211(b) to dismiss the jurisdictional defense if he desired a more prompt resolution of the merits of that defense. [*2]

Furthermore, the plaintiff cannot rely upon the remedial language of CPLR 2001 to cure his error, since that statute does not excuse a complete failure to file within the statute of limitations, as occurred here (see Matter of Miller v Waters, 51 AD3d 113, 117-118; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR, C304:3, 2009 Pocket Part, at 162, 165). Likewise, the plaintiff cannot rely on his filing of a proposed complaint in a prior proceeding for leave to file a late notice of claim to act as the functional equivalent of a filing in this action (see generally Rybka v New York City Health & Hosps. Corp., 263 AD2d 403). The papers served in an action must conform in all material respects to the papers that are filed to commence it (see Matter of Gershel v Porr, 89 NY2d 327, 332; Page v Marusich, 30 AD3d 871, 873; Louden v Rockefeller Ctr. N., 249 AD2d 25, 26). Here, the complaint served in this action dramatically differed, substantively and materially, from the proposed complaint which the plaintiff filed in the prior proceeding. Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the complaint. Moreover, the court properly denied the plaintiff's cross motion for leave to file the summons and complaint nunc pro tunc since, under the circumstances herein, the granting of that relief would impermissibly extend the statute of limitations (see CPLR 201; Bradley v St. Clare's Hosp., 232 AD2d 814, 815).

The bold is mine.

CPLR R. 3211(a)(7) and Punitive Damages

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

Fragrancenet.com, Inc. v Fragrancex.com, Inc., 2009 NY Slip Op 09613 (App. Div., 2nd, 2009)

[T]he Supreme Court properly, inter alia, granted that branch of the defendants' motion pursuant to CPLR 3211(a)(7) which was to dismiss the plaintiff's claim for punitive damages.

"Punitive damages are permitted when the defendant's wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations'" (Ross v Louise Wise Serv., Inc., 8 NY3d 478, 489, quoting Walker v Sheldon, 10 NY2d 401, 405; see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479; Sharapata v Town of Islip, 56 NY2d 332, 335). Here, the allegations in the complaint do not support the imposition of punitive damages.

Too Little Too Late CPLR R. 3404

CPLR R. 3404 Dismissal of abandoned cases

Bornstein v Clearview Props., Inc., 2009 NY Slip Op 09602 (App. Div., 2nd, 2009)

A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked "off," and after it has been dismissed pursuant to CPLR 3404, must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants (see M. Parisi & Son Constr. Co. Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d 819, 820; Krichmar v Queens Med. Imaging, P.C., 26 AD3d 417, 419; Basetti v Nour, 287 AD2d 126, 131). The plaintiff is required to satisfy all four components of the test before the dismissal can be properly vacated and the case restored (see M. Parisi & Son Constr. Co. Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d at 820; Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419).

Here, the plaintiff failed to meet this burden. The unsubstantiated excuse proffered by a former attorney in counsel's law firm regarding health issues in his family and his own depression was insufficient to excuse the more than three-year delay in moving to restore the action after the plaintiff's prior motion to restore was denied, as there was no showing that these problems persisted throughout the period in question (see Bray v Thor Steel & Welding, 275 AD2d 912, 912-913; Knight v City of New York, 193 AD2d 720). Further, in light of the plaintiff's inactivity regarding the action during the delay in moving to restore the action to the calendar, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed (see Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419; Furniture Vil. v [*2]Schoenberger, 283 AD2d 607; Cruz v Volkswagen of Am., 277 AD2d 340, 341). Moreover, since more than nine years have passed between the time of the acts complained of and the date of the motion under review, the defendants would be prejudiced if the action was restored to the trial calendar (see Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419; Costigan v Bleifeld, 21 AD3d 871; Kalyuskin v Rudisel, 306 AD2d 246, 247). Accordingly, the plaintiff's renewed motion to vacate the dismissal of the action and to restore the action to the trial calendar should have been denied.

Fun fact: CPLR R. 3404 is not applicable to the Civil Court, at least in the Second Department.

Don’t Count Your Stips Until They’ve Hatched (CPLR R. 2104)

While I've been out in beautiful sunny Ohio, this case has been making the rounds.  It was first noticed by John Hochfelder and followed up by the Turk.  Oh, right, the case.

Diarassouba v Urban, 2009 NY Slip Op 09420 (App. Div., 2nd, 2009)

While the court was in recess and the jury was deliberating, Conrad Jordan, counsel for the plaintiff, communicated to the defendants' counsel, Barry M. Viuker, that his client had authorized him to accept a settlement offer in the sum of $150,000. Viuker provided no confirmation of the settlement, but rather asked, "Do we have a settlement?" Jordan responded that [*2]he accepted the settlement offer. Viuker proceeded to leave the room for several minutes, without having responded in any way to Jordan's statement. The defense counsel's question, "Do we have a settlement?" was his only and final mention of the settlement agreement until after the court took the jury's verdict.

During Viuker's absence from the courtroom, Jordan informed the court clerk that the parties had reached a settlement, although he did not provide a specific settlement amount. The clerk did not record this information, but said that he would inform the Judge, who was already on her way to the courtroom to read a new jury note. Viuker then returned to the courtroom. When the judge arrived at the courtroom, Viuker inquired, off the record, as to the contents of the jury note. The Judge responded that the jury had reached a verdict. Once again, Viuker left the room for a short while.

When Viuker returned, Jordan asked the court to memorialize the settlement on the record prior to taking the verdict, but the court refused Jordan's requests.

"Mr. Jordan: Could I put my request on the record?

"The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.

"Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?

"The Court: Because I said what I have to say. Let's proceed."

Viuker was silent throughout this whole exchange.

The verdict was then taken in the plaintiff's favor, finding that Dr. Lubin and Dr. Horiuchi were each 35% at fault for the plaintiff's injury. The jury awarded the plaintiff the sum of $800,000 for past pain and suffering and the sum of $650,000 for future pain and suffering over 30 years.

After hearing the jury verdict, Jordan asserted that the purported stipulation of settlement was invalid on the ground that the court never permitted the settlement terms to go on the record. Jordan further posited that the settlement was invalid on the ground that the defense never consented to the settlement, but rather, was completely silent throughout Jordan's requests to put the settlement on the record.

"The Court: Now [that the verdict has been taken], Mr. Jordan, what is it that you would like to say?

"Mr. Jordan: Now, your Honor, what I will report for the record is that I attempted to talk to the Court about settlement and I watched the defense attorney, while he heard that there was a quick verdict, go outside twice. I heard him come in, and while he was in this courtroom he did nothing to second my application to this Court to put a settlement on the record and the Court did nothing to ask the parties whether there's a settlement on the record. As far as I know, the caselaw is there has to be a settlement on the record to be binding. So, at this point, the position of the plaintiff is that there is not [a] settlement, and there was no settlement."

Thereafter, by order dated March 28, 2008, the Supreme Court granted the defendants' motion to enforce the purported stipulation of settlement. The court determined that the settlement had been made in open court, with the judge on the bench and the court reporter and court clerk in attendance. As such, the court found that it was not necessary for the stipulation to have been placed on the record. The plaintiff appeals. We reverse.

CPLR 2104, the law governing settlements, sets forth that,

"An agreement between parties or their attorneys relating to any matter in an [*3]action other than one made between counsel in open court, is not binding upon a party unless it is in writing subscribed to by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the County Clerk."

Thus, a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record.

Make no mistake about it, this decision is important.  Read the entire decision, then read it again.  Then, go ahead and take a look at Velazquez v St. Barnabas Hosp., 2009 NY Slip Op 09315 (Ct. App. 2009), where the Court of Appeals held:

The parties do not dispute that they agreed to settle the action for a specific amount; however, details regarding conditions of the settlement, including a disputed [*2]confidentiality agreement, were never recorded or memorialized. No agreement was made in open court or filed with the county clerk. Accordingly, it is not binding upon the parties (see CPLR 2104; Matter of Dolgin Eldert Corp., 31 NY2d 1, 9-11 [1972]; Andre-Long v Verizon Corp., 31 AD3d 353, 354 [2d Dept 2006]).

“No appeal lies as of right from an order directing a hearing…”

Uzamere v Uzamere, 2009 NY Slip Op 09214 (App. Div., 2nd, 2009)

I Loves Me Some Venue: CPLR § 510 R. 511

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Thomas v Guttikonda, 2009 NY Slip Op 09212 (App. Div., 2nd, 2009)

A demand to change venue based on the designation of an improper county (see CPLR 510[1]) "shall be served with the answer or before the answer is served" (CPLR 511[a]). Since the appellants failed to serve a timely demand for a change of venue and failed to make a motion within the 15-day period required under the statute (see CPLR 511[b]), they were not entitled to change the venue of this action as of right (see Baez v Marcus, 58 AD3d 585, 586; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 816; Obas v Grappell, 43 AD3d 431). Thus, their motion "became one addressed to the court's discretion" (Callanan Indus. v Sovereign Constr. Co., 44 AD2d 292, 295; see Baez v Marcus, 58 AD3d at 586; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d at 816; Obas v Grappell, 43 AD3d at 432). While the appellants contend that their noncompliance with the time limit should be overlooked since they moved promptly after discovering the purported true residence of the defendant Edwin M. Chang, there was no evidence of any willful omissions or misleading statements regarding Chang's residence by the plaintiff (see Joyner-Pack v Sykes, 30 AD3d 469; P.T.R. Co. v Teitelbaum, 2 AD3d 609, 610; Pittman v Maher, 202 AD2d 172, 175; cf. Horowicz v RSD Transp., 249 AD2d 511). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to change the venue of this action pursuant to CPLR 510(1).

The Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to change the venue of this action pursuant to CPLR 510(3) since the [*2]appellants failed to demonstrate that "the convenience of material witnesses and the ends of justice [would] be promoted by the change" (O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171, quoting CPLR 510[3]).

Notice that 510 is a section and 511 is rule.  What does it mean?  Not a damn thing.

Motion to Renew and The Value of a General Release

CPLR R. 2221
(e) Motion for Leave to Renew

Huma v Patel, 2009 NY Slip Op 09191 (App. Div., 2nd, 2009)

Although a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion (see Ramirez v Khan, 60 AD3d 748; Matter of Progressive Northeastern Ins. Co. v Frenkel, 8 AD3d 390, 391; Hasmath v Cameb, 5 AD3d 438, 439; Bloom v Primus Automotive Fin. Serv., 292 AD2d 410), a motion for leave to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Renna v Gullo, 19 AD3d 472, 473; see Ramirez v Khan, 60 AD3d at 748; Sobin v Tylutki, 59 AD3d 701, 702; Lardo v Rivlab Transp. Corp., 46 AD3d 759; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437).

Here, the new evidence offered in support of the appellant’s motion, in effect, for leave to renew consisted of copies of general releases executed by the plaintiffs Mohammed U. Farooq and Mozzam Berlas in settlement of a prior action, which allegedly extinguished the debt underlying the two promissory notes which are the subject of this action. However, the appellant was aware of the existence of these releases at the time the summary judgment motion was made, and failed to demonstrate that he could not have obtained copies of the releases in time to oppose summary judgment with the exercise of [*2]due diligence. In any event, the appellant failed to demonstrate that the existence of the releases warranted a change in the prior determination awarding summary judgment to the plaintiffs Uzma Huma and Faiza Berlas, who are the payees on the subject promissory notes. “The meaning and coverage of a general release depends on the controversy being settled and upon the purpose for which the release was actually given” (Lefrak SBN Assoc. v Kennedy Galleries, 203 AD2d 256; see Cahill v Regan, 5 NY2d 292, 299; Matter of Brown, 65 AD3d 1140; Zichron Acheinu Levy, Inc. v Ilowitz, 31 AD3d 756), and a general release may not be read to cover matters which the parties did not desire or intend to dispose of (see Matter of Schaefer v Liberty National Bank and Trust Co., 18 NY2d 314, 317; Cahill v Regan, 5 NY2d at 299; Spears v Spears Fence, Inc., 60 AD3d 752, 753; Rotondi v Drewes, 31 AD3d 734, 735-736). Although the appellant predicated his motion for leave to renew upon the releases executed by the plaintiffs Mohammed U. Farooq and Mozzam Berlas in settlement of a prior action, the record does not disclose the nature of the prior action, and the appellant failed to offer sufficient evidentiary proof to raise a triable issue of fact as to whether the releases were intended to extinguish the debt underlying the subject promissory notes.

I probably should have waited until I found more 2221 decisions, but this one really stands out.

[edit]

Spoke too soon.  This decision (Morgan v Windham Realty, LLC) involves a 2221 motion, but that’s not what I’m going to quote.  It’s still procedural, but different.

The plaintiffs’ contention that Francis and Talbots failed, on their cross motion for summary judgment, to include an affidavit of a person with personal knowledge of the facts or appropriate deposition testimony was not raised in the Supreme Court and, thus, is not properly before this Court (see Kruszka v City of New York, 29 AD3d 742, 743; Medugno v City of Glen Cove, 279 AD2d 510, 511; Rosendale v Galin, 266 AD2d 444, 445; Gross v Aetna Cas. & Sur. Co., 240 AD2d 468, 469).

Deposition of Person In A Faraway Land: CPLR R. 3110, CPLR R. 3108, CPLR R. 3113

CPLR R. 3110 Where the deposition is to be taken within the state
(1) when the person to be examined is a party or an officer, director, member or employee of a party, within the county in which he resides or has an office for the regular transaction of business in person or where the action is pending; or

CPLR R. 3108 Written questions; when permitted

CPLR R. 3113 Conduct of the examination
(d) The parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically. The stipulation shall designate reasonable provisions to ensure that an accurate record of the deposition is generated, shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may physically be present at the deposition; and shall provide for any other provisions appropriate under the circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.

Gartner v Unified Windows, Doors & Siding, Inc., 2009 NY Slip Op 09186 (App. Div., 2nd, 2009)

While depositions of the parties to an action are generally held in the county where the action is pending (see CPLR 3110[1]), if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere (see LaRusso v Brookstone, Inc., 52 AD3d 576, 577; Hoffman v Kraus, 260 AD2d 435, 437). Here, the Supreme Court providently exercised its discretion in denying the appellant's motion to compel Dora Lillian Alvarado Hernandez, a plaintiff in Action No. 1, and the infant children of David Leonard Coy-Sanchez and Elquin Astaiza Ceballos, the decedents in Action Nos. 1 and 2, respectively, to appear in New York for depositions upon oral examination. The Supreme Court further providently exercised its discretion in granting the cross motion of the plaintiffs in Action No. 1 to compel the appellant to take any deposition upon oral examination of Hernandez and Coy-Sanchez's infant son (hereinafter the infant son) in Colombia, or to take the depositions of those persons upon written questions, when it determined that the infant son and Hernandez, the wife of the decedent in Action No. 1—who are the next of kin and the real parties in interest—were unable to leave Colombia to travel to New York for deposition (see Hoffman v Kraus, 260 AD2d at 437). Given this undue hardship, it was appropriate for the Supreme Court to [*2]find that an exception to the rule articulated in CPLR 3110(1) was warranted.

The Supreme Court proposed three viable, nonexclusive solutions to the appellant with respect to conducting the outstanding depositions of Hernandez and the infant son pursuant to CPLR 3108: (1) flying the appellant's New York counsel to Bogota, Colombia, to conduct the depositions upon oral examination at the United States Embassy in that city, with the travel costs and cost of translation to be borne by the plaintiffs in Action No. 1, (2) retaining local counsel in Bogota to conduct the depositions upon oral examination at that location, and (3) conducting the depositions upon written questions. We note that, in addition, those depositions may also be conducted via videoconferencing pursuant to CPLR 3113(d), with the deponents remaining at the United States Embassy in Bogota, Colombia (see Rogovin v Rogovin, 3 AD3d 352, 353). If the appellant elects to pursue this option, the cost of such videoconferencing is to be borne by the plaintiffs in Action No. 1 (see CPLR 3113[d]).

You can read more on the decision here.

CPLR R. 4518(c) Applied to Chiro Reports

CPLR R. 4518 Business records
(c) Other records. All records, writings and other things referred to in sections 2306 and 2307 are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose or by a qualified physician. Where a hospital record is in the custody of a warehouse, or “warehouseman” as that term is defined by paragraph (h) of subdivision one of section 7-102 of the uniform commercial code, pursuant to a plan approved in writing by the state commissioner of health, admissibility under this subdivision may be established by a certification made by the manager of the warehouse that sets forth (i) the authority by which the record is held, including but not limited to a court order, order of the commissioner, or order or resolution of the governing body or official of the hospital, and (ii) that the record has been in the exclusive custody of such warehouse or warehousemen since its receipt from the hospital or, if another has had access to it, the name and address of such person and the date on which and the circumstances under which such access was had. Any warehouseman providing a certification as required by this subdivision shall have no liability for acts or omissions relating thereto, except for intentional misconduct, and the warehouseman is authorized to assess and collect a reasonable charge for providing the certification described by this subdivision.

Clickety.