SLAPP

Most people don't know or care about SLAPP. It's interesting stuff and there is a wealth of information    about in on the internets.  Along with SLAPP, note that plaintiff, in opposing defendant's summary judgment motion, only attached an attorney affirmation.  No affidavit was attached.  And note the rare reference to 3212(h).

Novosiadlyi v James, 2010 NY Slip Op 00938 (App. Div., 2nd, 2010)

The plaintiffs commenced this action alleging, inter alia, that the
defendants defamed them during public hearings on their application for a
permit allowing them to use their house in Lindenhurst as an
owner-occupied two-family home. The defendant Joseph Ippolito moved for
summary judgment dismissing the complaint insofar as asserted against
him pursuant to CPLR 3212 and Civil Rights Law §§ 70-a and 76-a, and for
recovery on his counterclaim for an award of an attorney's fee,
contending that this action was an improper strategic lawsuit against
public participation (hereinafter SLAPP action) (see 600 W. 115th St.
Corp. v Von Gutfeld, 80 NY2d 130, 137 n 1, cert denied 508
US 910).

In the order granting Ippolito's motion, the Supreme Court
determined that he established his prima facie entitlement to the
protections of Civil Rights Law §§ 70-a and 76-a. Moreover, the court
rejected the plaintiffs' opposition, which consisted of only an
affirmation of counsel, as being without probative value and
insufficient to oppose the summary judgment motion. Consequently, the
Supreme Court granted Ippolito's motion for summary judgment dismissing
the complaint insofar as asserted against him and awarded him summary
judgment on his counterclaim for an award of an attorney's fee to the
extent of scheduling an inquest.

Thereafter, the plaintiffs, proceeding pro se, moved pursuant to
CPLR 2005 and 2221 for leave to renew their opposition to Ippolito's
motion. In an order dated July 3, 2008, the Supreme Court denied the
plaintiffs' motion for leave to renew, finding that no new facts were
offered and that the new arguments offered as new facts would not have
changed the prior result. The plaintiff Roman Novosiadlyi appeals from
that order. We affirm.
[*2]

A motion for leave to renew must
be (1) based upon new facts not offered on the prior motion that would
change the prior determination, and (2) set forth a reasonable
justification for the failure to present such facts on the prior motion (see
CPLR 2221[e][2], [3]; Caraballo v Kim, 63 AD3d 976, 978; Jackson
Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480). Here, the
plaintiffs failed to submit new facts sufficient to change the court's
prior determination granting Ippolito's summary judgment motion. Civil
Rights Law § 76-a was enacted to provide special protection for
defendants in actions arising from the exercise of their rights of
public petition and participation by deterring SLAPP actions (see 600
W. 115th St. Corp. v Von Gutfeld, 80 NY2d at 137 n 1; Singh v
Sukhram, 56 AD3d 187, 194). Where, as here, the defendant
established that the action involves the rights of public petition and
participation (see Civil Rights Law § 76-a[1][a]), "damages may
only be recovered if the plaintiff, in addition to all other necessary
elements, shall have established by clear and convincing evidence that
any communication which gives rise to the action was made with knowledge
of its falsity or with reckless disregard of whether it was false"
(Civil Rights Law § 76-a[2]; see T.S. Haulers v Kaplan, 295 AD2d
595, 598). In addition, summary judgment must be awarded to the
defendant unless the plaintiff demonstrates, in opposition, that the
action has "a substantial basis in fact and law or is supported by a
substantial argument for an extension, modification or reversal of
existing law" (CPLR 3212[h]). The plaintiffs' submissions in support of
their renewal motion failed to meet this burden or otherwise raise a
triable issue of fact as to whether Ippolito knew that his statements
were false or that he made them with reckless disregard of whether they
were true. Accordingly, the Supreme Court properly denied the
plaintiffs' motion for leave to renew (see T.S. Haulers v Kaplan,
295 AD2d at 598).

The bold is mine.

Informal Judicial Admissions and 3101(d)

Normally this would go on the evidence blog, but I rarely post over there and am considering just killing the damn thing, so I'm posting it here.  In fact, it's been sitting around since December, waiting to be posted.

Ocampo v Pagan, 68 AD3d 1077 (App. Div., 2nd, 2009)

The court improvidently exercised its discretion in precluding the
testimony of the
defendants' expert witness in the area of radiology. "CPLR 3101 (d) (1)
(i) does not require a
party to respond to a demand for expert witness information 'at any
specific time, nor does it
mandate that a party be precluded from proffering expert testimony
merely because of
noncompliance with the statute,' unless there is evidence of intentional
or willful failure to
disclose and a showing of prejudice by the opposing party" (Hernandez-Vega
v
Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007], quoting
Aversa v
Taubes, 194 AD2d 580, 582 [1993]; see Rowan v Cross County Ski
& Skate, Inc.,
42 AD3d 563, 564 [2007]).

While a trial court "has the discretion to preclude expert
testimony for the failure to
reasonably comply with the statute" (Lucian v Schwartz, 55 AD3d
687, 688 [2008]),
there was no finding [*2]here of failure to
comply, reasonably or
otherwise, with the statute. This is not a situation in which the
defendants failed to demonstrate
good cause for failing to disclose expert information regarding expert
witnesses until the eve of
trial (cf. Martin v NYRAC, Inc., 258 AD2d 443 [1999]). Rather,
the defendants
produced an affidavit of service showing that the required notice
pursuant to CPLR 3101 (d) was
timely served (see CPLR 2103 [b] [2]). The court here merely
found that the plaintiff's
explanation raised a question of fact as to whether the plaintiff had
actually received the notice,
specifically declining to place blame on either party for the "totality
of . . .
circumstances" underlying the claim of the plaintiff's counsel that he
was unaware of the
existence of the first expert witness disclosure until right before the
start of the trial. Where there
is no evidence of intentional or willful failure to disclose, "any
potential prejudice to the
plaintiffs [may be] eliminated by an adjournment of the trial" (Rowan
v Cross County Ski &
Skate, Inc., 42 AD3d at 564; see Shopsin v Siben & Siben, 289
AD2d 220, 221
[2001]). By precluding the expert's testimony to avoid prejudicing the
plaintiff, instead of simply
adjourning the trial to avoid prejudice to either party, the court, in
effect, penalized the
defendants, although there was no evidence of wrongdoing on their part (see
Rowan v Cross
County Ski & Skate, Inc., 42 AD3d at 564; Shopsin v Siben
& Siben, 289 AD2d at
221). Contrary to the plaintiff's contention, the error was not
harmless.

Moreover, the Supreme Court improvidently exercised its
discretion in limiting the scope of
the defendants' cross-examination of the plaintiff by precluding the use
of pleadings, bills of
particulars, and sworn testimony given at a hearing pursuant to General
Municipal Law §
50-h in subsequent lawsuits, and in precluding the introduction such
documents into evidence.

Statements contained in a verified complaint, or " 'made by a
party as a witness, or contained
in a deposition, a bill of particulars, or an affidavit' " constitute
informal judicial admissions
(Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996],
quoting Prince,
Richardson on Evidence § 8-219, at 529 [Farrell 11th ed]; see Gomez v
City of New
York, 215 AD2d 353, 354 [1995]). As such, "they are generally
admissible pursuant to an
exception to the hearsay rule" (Payne v New Hyde Park Dodge, 163
AD2d 285, 286
[1990]). While not conclusive, they are "evidence of the fact or facts
admitted" (Prince,
Richardson on Evidence § 8-219, at 530 [Farrell 11th ed]; see Matter
of Union Indem.
Ins. Co. of N.Y., 89 NY2d at 103; Gomez v City of New York, 215
AD2d at 354;
Payne v New Hyde Park Dodge, 163 AD2d at 286). Where statements
in the pleadings
or the bill of particulars, or in depositions or hearings from other
judicial proceedings are
inconsistent with the trial testimony of a witness, they are also
admissible to impeach the
credibility of that witness (see Somir v Weiss, 271 AD2d 433
[2000]). Here,
cross-examination testimony of the plaintiff regarding allegations in
her pleadings and bill of
particulars from a subsequent action arising out of a trip and fall, and
parts of her testimony,
given at a hearing pursuant to General Municipal Law § 50-h in
connection with a
subsequent medical malpractice action, were admissible on the issue of
the truth of the facts
stated, both as prior inconsistent statements impeaching the plaintiff's
credibility, and as informal
judicial admissions. While prior accidents or lawsuits may not be
explored where the purpose is
to "induce the inference of negligence or demonstrate that the plaintiff
is litigious and therefore
unworthy of belief" (Molinari v Conforti & Eisele, 54 AD2d
1113, 1114 [1976]), "it is
open to one charged with having caused an injury to inquire into whether
the claimant had
sustained, or had claimed to have sustained, the same injury in
circumstances unrelated to those
at bar" (Bowers v Johnson, 26 AD2d 552 [1966]).

The trial court's conduct, including, inter alia, its excessive
intervention into the trial
proceedings, warrants remittal to the Supreme Court for a new trial
before a different Justice
(see Pickering v Lehrer, McGovern, Bovis, Inc., 25 AD3d 677, 679
[2006]; see also
Schaffer v Kurpis, 177 AD2d 379 [1991]; Testa v Federated Dept.
Stores, Abraham &
Straus Div., 118 AD2d 696, 697 [1986]).

The bold and underscore are mine.

High-Low

Vargas v Marquis, 65 AD3d 1332 (App. Div., 2nd, 2009)

In this action, the plaintiff successfully moved for summary judgment
on the issue of
liability in August 2006. Prior to submission of the damages issue to a
jury, the parties entered
into a "high-low" stipulation on the record, the parameters of which
were $275,000 and $25,000.
The jury awarded the plaintiff damages in the sum of $135,000, which was
within the
parameters. Thereafter, the plaintiff presented a judgment to the Clerk
of the Court in the
principal sum of the verdict, plus pre-verdict interest in the sum of
$28,895.72, and costs and
disbursements in the sum of $2,521.57. The total sum of the judgment was
$166,417.29. The
defendants sent a letter to the Clerk opposing entry of the proposed
judgment wherein they
argued, inter alia, in effect, that pursuant to the terms of the
parties' high-low stipulation, the
plaintiff waived a judgment and was obligated to provide a stipulation
of discontinuance and
general release. The Clerk entered the judgment submitted by the
plaintiff. The defendants then
moved to vacate the judgment, essentially repeating the arguments they
had made before the
Clerk. The plaintiff opposed the motion, and the Supreme Court denied
it. We reverse.

As we recently observed in Cunha v Shapiro (42 AD3d 95
[2007]), "[p]arties
entering into high-low agreements are free to craft the terms of their
agreements on the record in
any manner that is mutually acceptable to them" (id. at 104). In
this case, the stipulation
read into the record by defense counsel, to which the plaintiff's
counsel "agreed," was as follows:
"At the conclusion of the case, regardless of what the verdict is,
plaintiff's counsel will give a
stipulation of discontinuance and general release. If the number were
zero, we'll still pay you 25
thousand dollars pursuant to that agreement. If the number is over 275 [*2]thousand, well, the release would be for 275
thousand dollars. And
obviously, if the number is somewhere in between, it will be for
whatever that number was."

Under the particular circumstances of this case, we agree with
the defendants that pursuant
to the terms of the high-low stipulation at issue, the plaintiff's
counsel was obligated to furnish a
stipulation of discontinuance and general release—not to submit a
judgment
containing a substantial amount of interest and costs—"regardless of
what the verdict is"
and for "whatever [the] number was." Since there was no showing that the
high-low stipulation
was the product of fraud, duress, overreaching, or unconscionability,
its terms must stand
(see Shuler v Dupree, 14 AD3d 548, 548-549 [2005]).

The bold is mine.

Fun with 5015

CPLR R. 5015 Relief from judgment or order

HSBC Bank USA Natl. Assn. v Nuteh 72 Realty Corp., 2010 NY Slip Op 01617 (App. Div., 2nd, 2010)

"A defendant seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a meritorious defense to the motion and the action" (Newell v Hirsch, 65 AD3d 1108, 1109; see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d 745; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; Matter of Gambardella v Ortov Light., 278 AD2d 494, 495; Neuman v Greenblatt, 260 AD2d 616, 617). Here, in opposition to the plaintiff's motion for leave to enter a default judgment against the defendants Nuteh 72 Realty Corp. and Nathan Friedman (hereinafter the defendants), and in support of their cross motion, inter alia, to vacate their default in opposing the plaintiff's motion to strike their answer pursuant to CPLR 3126, the defendants succeeded in demonstrating a reasonable excuse for their default (see Evolution Impressions, Inc. v Lewandowski, 59 AD3d 1039, 1040).

However, the defendants failed to demonstrate, through evidence in admissible form, the existence of a meritorious defense, specifically, under the circumstances here, whether they were good faith purchasers of the subject real property for valuable consideration. Friedman's affirmation states only that "NUTEH is a good faith' purchaser for value of the Premises." This conclusory, [*2]self-serving, and bare legal conclusion was insufficient to establish the existence of a meritorious defense (see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d at 746; Matter of Atkin v Atkin, 55 AD3d 905; cf. Atwater v Mace, 39 AD3d 573, 575). Additionally, in the absence of any foundation, the defendants' submission of a one-page printout of a New York City Department of Finance document entitled "A[utomated] C[ity] R[egister] I[nformation] S[ystem] Search Results By Parcel Identifier" did not constitute evidence in admissible form sufficient to establish the existence of a meritorious defense (see generally Knupfer v Hertz Corp., 35 AD3d 1237, 1238; Triangle Transp., Inc. v Markel Ins. Co., 18 AD3d 229; Matter of Haber v Haber, 306 AD2d 282, 283; Merrill/New York Co. v Celerity Sys., 300 AD2d 206, 207). Accordingly, in the absence of any admissible evidence sufficient to demonstrate the existence of a meritorious defense, the Supreme Court should have granted the plaintiff's motion for leave to enter a default judgment, and denied the defendants' cross motion, inter alia, to vacate their default in opposing the plaintiff's motion to strike their answer.

Gross v Kail, 2010 NY Slip Op 01616 (App. Div., 2nd, 2010)

The Supreme Court erred in denying the plaintiffs' motion for leave to enter judgment against the defendants upon their default in appearing or answering and, in effect, granting the defendants' application, inter alia, to deem the proposed answer to have been served. In support of their motion, the plaintiffs submitted their process server's affidavits of service of the summonses and the complaints, a factually-detailed complaint verified by the plaintiff Gerald P. Gross, and an affirmation from attorney Mitchell J. Rich regarding the defendants' default in appearing and answering (see CPLR 3215[f]).

In opposition to the plaintiffs' motion and in support of their application, inter alia, to deem the proposed answer to have been served, the defendants were required to demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015[a][1]; Miller v Ateres Shlomo, LLC, 49 AD3d 612, 613; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649; [*2]Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356; Curran v Graf, 13 AD3d 409; Ennis v Lema, 305 AD2d 632, 633). The defendants failed to provide any excuse for their default and failed to demonstrate that they had a meritorious defense to the action. The defendants submitted a proposed answer verified only by their attorney, who had no personal knowledge of the facts (see Baldwin v Mateogarcia, 57 AD3d 594, 595; Bekker v Fleischman, 35 AD3d 334, 335; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 556, 557; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d at 356). Accordingly, the plaintiffs' motion should have been granted and the defendants' application should have been denied.

393 Lefferts Partners, LLC v New York Ave. at Lefferts, LLC, 68 AD3d 976 (App. Div., 2nd, 2009)

A defendant seeking to vacate a default in answering must demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Harris v City of New York, 30 AD3d 461, 463-464 [2006]; Orangetown Policemen&
#39;s Benevolent Assn. v Town of Orangetown, 18 AD3d 841 [2005]). The appellant submitted an affidavit of service that stated that it was served on August 10, 2007, pursuant to Limited Liability Company Law § 303, by service upon the Secretary of State. The appellant also submitted a certificate of service and return receipt showing that the Secretary of State delivered the summons and complaint to the appellant's designated address by certified mail, return receipt requested, but the return receipt was not dated and was signed by a person who was not employed by the appellant. Joseph Artusa, one of the appellant's managing members, stated in an affidavit that he was out of the office "on many days" in August and September of 2007 and did not see the summons and complaint on his desk until late September, when the time to answer it had expired. This statement does not provide a reasonable excuse for the appellant's default. Moreover, the Supreme Court providently exercised its discretion in determining that the appellant was not entitled to relief pursuant to CPLR 317, since it failed to demonstrate that it did not receive actual notice of the summons and complaint in time to defend the action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725 [1983]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003]). In addition, the appellant failed to demonstrate a meritorious defense to the action.

The bold is mine

Lawyer for Non-Party Witnesses? No. (CPLR R. 3113)

CPLR R. 3113. Conduct of the examination

This decision was first posted over at No-Fault Defender, but received more thorough treatment over at the New York Personal Injury Blog.  Head over to both.  Make sure to read the comments at NYPIB.

Thompson v Mather, 2010 NY Slip Op 01239 (App. Div., 4th, 2010)

We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses "shall proceed as permitted in the trial of actions in open court." Although counsel for the physicians correctly conceded at oral argument of plaintiff's motion in Supreme Court that she had no right to object during or to participate in the trial of this action, she nevertheless asserted that she was entitled to object during nonparty depositions and videotaped deposition questioning. We cannot agree that there is such a distinction, based on the express language of CPLR 3113 (c). Indeed, we discern no distinction between trial testimony and pre-trial videotaped deposition testimony presented at trial. We note in addition that 22 NYCRR 202.15, which concerns videotaped recordings of civil depositions, refers only to objections by the parties during the course of the deposition in the subdivision entitled "Filing and objections" (see 22 NYCRR 202.15 [g] [1], [2]). We thus conclude that plaintiff is entitled to take the videotaped depositions of the physicians and that counsel for those physicians is precluded from objecting during or otherwise participating in the videotaped depositions.

Lastly, we note that the practice of conditioning the videotaping of depositions of nonparty witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents' contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.
The bold is mine.

While you are here, here are some blogs that I like.  You might like them too, unless you are a commie.

• Nobody’s Business
• The Rut
• Failbooking (You might find some of the stuff offensive.  Don’t say you weren’t warned.)
• Section 1983 Blog
• Popehat
• Courtoons
• Mr. Self Development (Yes I read this stuff.  It doesn’t work.  I read it anyway.)
• The (new) legal writer
• Photography Is Not A Crime
• New York Personal Injury Blog (great set of posts on Scalia and secession)
• Very Demotivational (Might be offensive like Failbooking.  Stop being a baby.)

Timely, but Improper: CPLR § 3012(d)

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

Gazes v Bennett, 2010 NY Slip Op 01575 (App. Div., 1st, 2010)

Plaintiff brought this malpractice action against defendant in connection with his representation of the debtor and trustee in a wrongful termination action (see Horan v New York Tel. Co., 309 AD2d 642 [2003]). Plaintiff's time to commence this action and serve a summons and complaint expired on September 13, 2007, six months after the dismissal of an earlier action arising out of the same transactions (see CPLR 205[a]). Commencement was timely, but attempted service on September 12, 2007 was defective because the mailing component of service was sent to defendant's place of work in an envelope indicating it was from a law firm, an error attributable to the process server. The denial of plaintiff's request that defendant be compelled to accept late service of the pleadings was contained in a final order, and is thus appealable as of right (see CPLR 5701[a][2]).

A court may "compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay" (CPLR 3012[d]). Plaintiff submitted a reasonable excuse for delay in proper service — namely, the process server's error — which was attributable to counsel and constituted excusable law office failure (see CPLR 2005).

Plaintiff set forth a meritorious action, and the delay was excusable in light of its brevity and the absence of any pattern of default; defendant should have been compelled to accept late service pursuant to CPLR 3012(d) (see Nason v Fisher, 309 AD2d 526 [2003]). This is especially so in the absence of any prejudice to defendant, who was actually and timely — although not properly — served with the complaint (see Lisojo v Phillip, 188 AD2d 369 [1992]; see also CPLR 2001, 2004), and in the absence of any indication that plaintiff intended to abandon his claim (see Nolan v Lechner, 60 AD3d 473 [2009]).

The bold is mine.

3102 Pre-Action Discovery

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Champion v Metropolitan Tr. Auth., 2010 NY Slip Op 01585 (App. Div., 1st, 2009)

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 29, 2009, which granted petitioner's motion for pre-action discovery to the extent of directing that respondents provide certain discovery and inspection of evidence within 30 days of service of a copy of the order, and continuing the stay in the order to show cause prohibiting respondents from altering, changing, repairing, servicing, modifying, moving, selling or in any other way disposing of any vehicle(s) and/or plow(s) utilized by respondents for any snow removal operations on the date of the hit and run motor vehicle accident at or near the subject intersection, unanimously modified, on the law, to strike the direction that respondents produce items 2(d), (e), (f), (g), (h), (j), (k), (m) and (n), limit the production of items 2(b), (c) and (o) to materials concerning the designated area between the hours of 9 a.m. and 11 a.m., and vacate the stay, and otherwise affirmed, without costs.

While petitioner has alleged sufficient facts to support her claim that respondents were negligent in operating the motor vehicle that caused her injury, she has failed to allege any facts supporting her negligent maintenance claim. Petitioner's requests for items 2(d), (e), (f), (g), (h), (j), (k), (m) and (n) serve no purpose other than to determine whether facts exist to support a cause of action related to a defect in the motor vehicle or the attached plow, which is not an appropriate use of CPLR 3102(c) (see Holzman v Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347-348 [2000]). Because petitioner has not offered facts sufficient to support a negligent maintenance claim or any other claim that would require respondents' vehicles and plows to be produced or inspected, the IAS court's stay should be vacated.

Petitioner's requests for items 2(b), (c) and (o) are material and necessary to petitioner's viable negligent operation claim, because they will assist her in identifying prospective defendants, particularly the operator of the motor vehicle, and in framing her complaint (see Christiano v Port Auth. of N.Y. & N.J., 1 AD3d 289, 289 [2003]). However, the order was overly broad with respect to those items, because there was no time limitation (id.). Since [*2]petitioner sought disclosure regarding an accident that allegedly occurred around 10:00 a.m., the order should be modified as indicated above.

The bold is mine.

The Problem with CPLR R. 3211(a)(7)

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

Thomas v Thomas, 2010 NY Slip Op 01586 (App. Div., 1st, 2010)

Because the instant motion is pursuant to CPLR 3211, the complaint "is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applying this standard, plaintiffs have stated a cause of action for a constructive trust. As a preliminary matter, it is accepted that a constructive trust over real property can be imposed even where an underlying agreement is not in writing (see Sharp, 40 NY2d at 122). The complaint clearly alleges that Janet Thomas promised to transfer the property back to plaintiffs. It can be inferred that plaintiffs relied on that promise, or they would have not made the transfer. That plaintiffs meant to convey in their complaint that Janet Thomas would be unjustly enriched without judicial intervention can be similarly assumed.

While it is not clearly spelled out in the complaint that plaintiffs and Janet Thomas had a confidential relationship, Janet Thomas's affidavit, submitted in support of her motion, provides sufficient information to draw such an inference. Specifically, the affidavit volunteers the existence of the partner program and the fact that, until shortly before the transaction at issue, the parties were co-venturers in a quasi-banking enterprise, however informal that enterprise may have been. This is sufficient to infer that the parties had fiduciary responsibilities to one another [*3]which elevated the relationship from one of mere acquaintances to a "confidential" one. We disagree with the dissent's position that we may not consider Janet Thomas's affidavit. On a CPLR 3211 motion a plaintiff's affidavit "may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 635 [1976]). It follows, a fortiori, that admissions in a defendant's affidavit may similarly be used to ascertain whether a plaintiff has a valid cause of action.

***

ROMÁN, J. (dissenting)

Since I believe that the majority misconstrues well settled law, applicable to motions to dismiss pursuant to CPLR § 3211(a)(7), I dissent.

***

When deciding a motion to dismiss a complaint, pursuant to CPLR 3211(a)(7), all [*4]allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (id.). In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint (CPLR 3211[c]; Cron v Hargro Fabrics, 91 NY2d at 366; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Amaro v Gani Realty Corp., 60 AD3d 491, 492 [2009]). If an affidavit is submitted for that purpose, it should be given its most favorable intendment (Cron v Hargro Fabrics, 91 NY2d at 366).

***

While a plaintiff can cure pleading defects by submitting an affidavit, it does not follow that any such defects in a plaintiff's pleadings can be cured by a defendant's submissions, affidavit or otherwise. Here the majority finds that the existence of a confidential relationship by virtue of an affidavit submitted by Janet Thomas in support of her motion to dismiss the complaint. While the majority's position finds some support in Rovello v Orofino Realty Co., 40 NY2d 633 [1976], where the court held that affidavits can be used to correct pleading defects in a complaint, without ever stating whose affidavits could be so considered, in Leon and then again in Cron, the Court of Appeals, while citing Rovello, nevertheless implicitly narrowed the holding in Rovello, stating that "[i]n opposition to such a motion [one pursuant to CPLR 3211], a plaintiff may submit affidavits to remedy defects in the complaint' and preserve inartfully pleaded but potentially meritorious claims'" (Cron v Hargro Fabrics, 91 NY2d at 366, citing Rovello v Orofino Realty Co., Inc., 40 NY2d at 635-636 [emphasis added]). Thus, it is only a plaintiff's affidavit which can be used to remedy a defect in the complaint (id.; see Leon v Martinez, 84 NY2d at 88; Amaro v Gani Realty Corp., 60 AD3d at 492; see also Fitzgerald v Federal Signal Corp., 63 AD3d 994, 995 [2009]).

The bold is mine.  (a)(7), like (a)(1), and like 5015, is constantly construed differently.  Someone needs to clear this mess up.

Error to replace a juror where no “evinced bias” is shown: CPLR § 4106

CPLR § 4106 Alternate jurors

Troutman v 957 Nassau Rd., LLC, 2010 NY Slip Op 00836 (App. Div., 2nd, 2010)

After the close of the plaintiffs' case, a juror informed the trial court that she knew one of the witnesses who was going to testify for the defense. The juror explained that she lived in the same neighborhood as the witness, and graduated from high school with her. The juror also indicated that the extent of their relationship was that they would occasionally see each other on the street, say hello, and ask each other how they were doing. The juror then indicated, in response to the court's questioning, that she would "treat" the witness "the same as all other witnesses," and that "nobody . . . started [the] case with an advantage." The court then voiced its "opinion" that the juror was "okay," "seemed like she could be fair," and should "stay."

However, defense counsel then made an application, which the plaintiffs' attorney opposed, for the juror to be replaced with an alternate juror. At that point, the trial court, upon observing that the "trial" was already a "lengthy" one, decided that "the safest course of action" would be to replace the juror with an alternate juror. The court explained that "a lot of times," jurors like the juror in question, who [*2]"know someone" and "say they think they will be okay," end up "hav[ing] a problem when they are making a decision." Hence, the court granted defense counsel's application. However, the court erred in doing so.

CPLR 4106 provides that, in a civil case, if, before the final submission of the case to the jury, a seated juror "dies, or becomes ill, or for any other reason is unable to perform his [or her] duty," the trial court may remove the juror and replace the juror with an alternate juror. This Court, in interpreting the phrase "or for any other reason is unable to perform his [or her] duty" (CPLR 4106), has determined that a seated juror in a civil case may be removed from the jury if he or she "has evinced a certain bias or prejudice against one of the parties" (Mark v Colgate Univ., 53 AD2d 884, 886; see Narvaez v Piccone, 16 AD3d 641, 642; French v Schiavo, 300 AD2d 119, 119-120). Here, however, there was no indication that the juror in question evinced any bias or prejudice against one of the parties. Furthermore, the trial court's concern that such a bias or prejudice might eventually surface was speculative. Under these circumstances, the court should have denied defense counsel's application, and should not have replaced the juror with an alternate juror (cf. Wisholek v Douglas, 280 AD2d 220, 224, revd on other grounds 97 NY2d 740). Therefore, the judgment must be reversed, the complaint reinstated, and the matter remitted for a new trial on the issue of liability.

The bold is mine.

Equitable Estoppel and SOL

Some good old procedural fun here.

CPLR § 5701 Appeals to appellate division from supreme and county courts
(a) Appeals as of right

Evan S. v Joseph R., 2010 NY Slip Op 00831 (App. Div., 2nd, 2010)

The June 24, 2008, order appealed from did not decide the defendant's motion to dismiss, but, instead, held it in abeyance. Accordingly, that order is not appealable as of right (see CPLR 5701[a][2]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305; Housberg v Curtin, 209 AD2d 670, 671; Matter of Fritsch v Westchester County Dept. of Transp., 170 AD2d 602), and we decline to grant leave to appeal, as that order was superseded by the order dated September 10, 2008.

Upon reargument and renewal, the Supreme Court should have granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. The plaintiff sought to recover damages for injuries arising from alleged sexual assaults which purportedly occurred in 1995 when he was 10 years old. Pursuant to the toll for infancy (see CPLR 208), the applicable one-year statute of limitations (see CPLR 215[3]; Krioutchkova v Gaad Realty Corp., 28 AD3d 427, 428; Tserotas v [*2]Greek Orthodox Archdiocese of N. and S. Am., 251 AD2d 323, 324) began to run in 2003, after the plaintiff turned 18. Accordingly, the statute of limitations expired in 2004, and the plaintiff's commencement of this action in 2008 was untimely (see McDonald v McDonald, 193 AD2d 590, 591; Pittelli v Schulman, 128 AD2d 600, 602). Further, the alleged threats made by the defendant at the time of the incidents, and on a subsequent occasion while the parties were in high school, did not rise to the requisite level necessary to equitably estop the defendant from asserting the statute of limitations as a defense to this action brought by the plaintiff approximately five years after he reached the age of majoritysee generally Zumpano v Quinn, 6 NY3d 666, 674-675; Santo B. v Roman Catholic Archdiocese of N.Y., 51 AD3d 956, 957-958; Doe v Holy See [State of Vatican City], 17 AD3d 793, 796; Zoe G. v Frederick F.G., 208 AD2d 675, 675-676; Doe v Roe, 5 Misc 3d 1032A).  (

The bold is mine.  I put the link in for Zumpano.  I'm assuming at least on of you will be curious enough to check it out.  You're on your own for the rest.