CPLR § 3123 (NTA)

Easy to ignore and easy to screw up.  Do either and the consequences can be surprising and severe.  This is a big deal.

CPLR § 3123 Admissions as to matters
of fact, papers, documents and photographs

New Image Constr., Inc. v TDR Enters. Inc., 2010 NY Slip Op 05681 (App. Div., 1st, 2010)

Plaintiff, a contractor, brought this action to recover money due for
the build out of a restaurant pursuant to a contract entered into by
TDR and Green. In support of its motion, plaintiff submitted two notices
to admit the genuineness of documents and a notice to admit purported
facts. Although served with the notices to admit, defendants did not
respond to any of them. Among the documents covered by the first two
notices to admit was a June 2006 construction agreement executed by
plaintiff, and by Green, individually and on behalf of TDR. The
agreement provided for the payment of $200,000 for plaintiff's work.
Payments were to be made in five equal installments of $40,000 beginning
on the signing of the contract. The agreement set forth in detail the
scope of the work, and required that any changes to the agreement be in
writing.

Other documents covered by the notices to admit reflected a loan
to defendants by PNC Bank, for the payment of plaintiff's fee, among
other things. These documents show defendants' representation to the
bank that plaintiff had completed its work, a requirement for the
disbursement of the loan funds. The documents also included cancelled
checks made payable to plaintiff that were apparently endorsed and
cashed by defendants instead. Defendants are deemed to have admitted the
genuineness of the said documents because they did not timely respond
to plaintiff's notice (see CPLR 3123; Kowalski v Knox, 293
AD2d 892 [2002]). Hence, plaintiff's prima facie entitlement to
judgment as a matter of law is established. We note, however, that
plaintiff's third notice to admit was improper, since it impermissibly
"compell[ed] admission of fundamental and material issues or ultimate
facts that can only be resolved after a full trial" (Hawthorne Group v RRE Ventures, 7 AD3d 320,
324 [2004]).

Since defendants are deemed to have admitted the genuineness of
the construction [*2]agreement, their
attempts to disaffirm it are unavailing. We also reject defendants'
claim that they terminated the contract due to plaintiff's failure to
diligently complete the work. Defendants do not claim to have served
plaintiff with a 14-day notice to cure and written notice of termination
which were contractual prerequisites to termination. Defendants'
purported termination of the contract was, therefore, ineffective (see
e.g. MCK Bldg. Assoc. v St. Lawrence Univ., 301 AD2d 726, 728
[2003], lv dismissed 99 NY2d 651 [2003]). The court properly
denied the motion for summary judgment as against defendant Terrance
Davis as it has not been shown that he dealt with plaintiff in an
individual capacity (see Kibler v Gilliard Constr., Inc., 53 AD3d 1040,
1042 [2008]).

The bold is mine.

Aggrieved

Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010)

The threshold issue raised by these facts is whether the limousine defendants are aggrieved by the dismissal of the complaint against the van defendants. The requirement that an appellant be aggrieved by a judgment or order appealed from is contained in CPLR 5511, which states:

"§ 5511. Permissible appellant and respondent. An aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party. He shall be designated as the appellant and the adverse party as the respondent" (emphasis added).

When the revisers of the laws on civil practice were in the process of creating the CPLR, they were unable to formulate a definition for the word "aggrievement" and they determined to leave that definition to case law (see Revisers' Notes in McKinney's Cons Laws of NY, Book 7B, CPLR 5511, at 129). At that time, the classic attempt at a broad definition of aggrievement was found in the case of Matter of Richmond County Socy. for Prevention of Cruelty to Children (11 AD2d 236, affd 9 NY2d 913, cert denied sub nom. Staten Island Mental Health Soc., Inc. v Richmond County Soc. For Prevention of Cruelty to Children, 368 US 290), in which it was said that "the test [of aggrievement] is whether the person seeking to appeal has a direct interest in the controversy which is affected by the result and whether the adjudication has a binding force against the rights, person or property of the party or person seeking to appeal" (id. at 239). Experience with that definition has shown that while legally correct, it does not provide a clear test which is relatively easy to apply with consistency.

 

For an analysis of the decision, head over to Full Court Pass.  I'm too busy winning awards and shit.

Hooray for me.

In my other thankless endeavor, I found out I was nominated for an award. I’m special.

Just a reminder

Goldstein v Guida, 2010 NY Slip Op 05513 (App. Div, 2nd, 2010)(Accordingly, under the circumstances of this case, the Supreme Court
properly held Guida liable for the damages incurred by the plaintiff as a
result of the conversion of the chairs (see Ingram v Michael and Jr.
Auto Repair, 148 AD2d 324, 325)).

Haracz v Cee Jay, Inc., 2010 NY Slip Op 05514 (App. Div., 2nd, 2010)(Where, as here, the movant fails to sustain its initial burden of making
a prima facie showing of entitlement to judgment as a matter of law,
summary judgment should be denied regardless of the sufficiency of the
opposing papers (see Ayotte v Gervasio, 81 NY2d 1062, 1063; Alvarez
v Prospect Hosp., 68 NY2d at 324)).

No Unfettered Disclosure; CPLR § 3101

CPLR § 3101 Scope of disclosure

Foster v Herbert Slepoy Corp., 2010 NY Slip Op 05509 (App. Div., 2nd, 2010)

CPLR 3101(a) requires "full disclosure of all matter material and
necessary in the prosecution or defense of an action." "The phrase
material and necessary' should be interpreted liberally to require
disclosure, upon request, of any facts bearing on the controversy which
will assist preparation for trial by sharpening the issues and reducing
delay and prolixity. The test is one of usefulness and reason'" (Friel
v Papa, 56 AD3d 607, 608, quoting Allen v Crowell-Collier Publ.
Co., 21 NY2d 403, 406). A party, however, does not have the right to
"uncontrolled and unfettered disclosure" (Gilman & Ciocia, Inc. v
Walsh, 45 AD3d 531, 531; see Barouh Eaton Allen Corp. v
International Bus. Machs. Corp., 76 AD2d 873). " It is incumbent on
the party seeking disclosure to demonstrate that the method of discovery
sought will result in the disclosure of relevant evidence or is
reasonably calculated to lead to the discovery of information bearing on
the claims'" (Vyas v Campbell, 4 AD3d 417, 418, quoting Crazytown
Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421).

"The Supreme Court has broad discretion in the supervision of
discovery, and its determinations should not be disturbed on appeal
unless improvidently made" (Casabona v Huntington Union Free School
Dist., 29 AD3d 723, 723; see Andon v 302-304 Mott St. Assoc., 94
NY2d 740, 746; Milbrandt & Co., Inc. v Griffin, 19 AD3d 663;
Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518).
Here, the Supreme Court providently exercised its discretion in
concluding, inter alia, that the additional discovery sought by the
appellants was neither material nor necessary to the prosecution or
defense of any claim (see CPLR 3101[a]; Casabona v Huntington
Union Free School Dist., 29 AD3d 723; Vyas v Campbell, 4 AD3d
417; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460).

The bold is mine.

[updated 6/27/10:  I added links to Vyas and Crazytown].

The $395.00 brief

Brian Garner is coming back to New York with a new CLE:  The Winning Brief.  But the CLE is $395.00, and, unfortunately out of reach for poors like me.  Everyone else should go.  If you do go, please let Mr. Garner know that there is a recession going on. Thanks.

h/t the (new) legal writer

BP CPLR R. 3043 (use it right)

CPLR R. 3043 Bill of particulars in personal injury actions

Mahr v Perry, 2010 NY Slip Op 05369 (App. Div., 2nd, 2010)

The appellants' objections to the plaintiffs' responses to demands number 4, 14, 18, and 19 are without merit, since none of the information sought in those demands is expressly authorized under CPLR 3043 (see Feraco v Long Is. Jewish-Hillside Med. Ctr., 97 AD2d 498; Williams v Shapiro, 67 AD2d 706; Johnson v Charow, 63 AD2d 668).

The appellants' objections to the plaintiffs' responses to demands number 3, 8, and 10 are also without merit. The plaintiffs properly objected to each of these demands, as they improperly sought evidentiary material (see Toth v Bloshinsky, 39 AD3d 848, 849; Benn v O'Daly, 202 AD2d at 465). Demand 8 also was improper on the ground that it sought to compel the plaintiffs to "set forth the manner in which the physician failed to act in accordance with good and accepted medical practice," which is knowledge "a physician is chargeable with knowing" (Toth v Bloshinsky, 39 AD3d at 849; see Dellaglio v Paul, 250 AD2d 806).

The bold is mine.

Fish Frye

Nothing to do with fish. I just like the way the title sounds.  Sorry.

Fontana v LaRosa, 2010 NY Slip Op 05357 (App. Div., 2nd, 2010)

The order appealed from, which denied the appellant's motion to preclude certain testimony of the plaintiffs' expert witness or to direct that witness to submit to a hearing pursuant to Frye v United States (293 F 1013), was, in effect, an evidentiary ruling. Such a ruling, "even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission" (Savarese v City of N.Y. Hous. Auth., 172 AD2d 506, 509; see Hering v Lighthouse 2001, LLC, 21 AD3d 449, 451-452).

Parol Evidence

Matthius v Platinum Estates, Inc., 2010 NY Slip Op 04965 (App. Div., 2nd, 2010)

JAC's contention that it was not obligated to indemnify Grymes Hill,
Cullota, Ricca, and Platinum because pursuant to the merger clause in
the January 17th agreement, that agreement superseded the prior
indemnification agreement, is without merit. The purpose of a merger
clause is to require full application of the parol evidence rule in
order to bar the introduction of extrinsic evidence to alter, vary, or
contradict the terms of a written agreement (see Jarecki v Shung Moo
Louie, 95 NY2d 665, 669; Matter of Primex Intl. Corp. v Wal-Mart
Stores, 89 NY2d 594, 599). Where a valid contract is incomplete,
extrinsic evidence is admissible to complete the writing if it is
apparent from an inspection of the writing that all the particulars of
the agreement are not present, and that evidence does not vary or
contradict the writing (see Valente v Allen Shuman & Irwin Richt,
D.P.M., P.C., 137 AD2d 678).

Here, the January 17th agreement was incomplete and ambiguous. It
contained a general provision requiring JAC to provide insurance, but
did not state the amount of insurance coverage or the parties to be
named as insureds. Therefore, evidence of the indemnification agreement,
which contained specific provisions regarding the amount of insurance
to be provided and the parties to be insured, was admissible to resolve
these ambiguities. The indemnification agreement however, did not vary,
alter, or contradict any terms in the January 17th agreement and, thus,
remained enforceable (see Matter of Primex Intl. Corp. v Wal-Mart
Stores, 89 NY2d 594).

Furthermore, the January 17th agreement set forth the work to be
performed by JAC, but did not specifically address the issue of
indemnification. Therefore, Grymes Hill and Platinum could present
evidence to prove the existence of the agreement in which JAC agreed to
indemnify them (see Elbroji v 22 E. 54th St. Rest. Corp., 67 AD3d
957). Since the indemnification agreement and the January 17th
agreement dealt with different subject matter, the merger clause did not
extinguish the indemnification agreement (see Gordon v Patchogue
Surgical Co., 222 AD2d 651).

By obtaining insurance and naming Grymes Hill as an insured
pursuant to the indemnification agreement, JAC demonstrated its intent
to be held to that agreement.

The bold is mine.

The inherent power to vacate CPLR 5015

Katz v Marra, 2010 NY Slip Op 04957 (App. Div., 2nd 2010)

Pursuant to CPLR 5015(a), "[t]he court which rendered a judgment or
order may relieve a party from it upon such terms as may be just." This
statute sets forth certain grounds for vacatur, including excusable
default, newly-discovered evidence, fraud, misrepresentation, and lack
of jurisdiction. As recognized by the Court of Appeals, the drafters of
CPLR 5015 did not envision that this statute would provide an exhaustive
list of the grounds for vacatur (see Woodson v Mendon Leasing Corp.,
100 NY2d 62, 68). Instead, a court retains "its discretionary power
to vacate its own judgment for sufficient reason and in the interests
of substantial justice'" (Goldman v Cotter, 10 AD3d 289, 293, quoting Woodson
v Mendon Leasing Corp., 100 NY2d at 68; see Ladd v Stevenson, 112
NY 325, 332). However, "[a] court's inherent power to exercise control
over its judgment is not plenary, and should be resorted to only to
relieve a party from judgments taken through [fraud,] mistake,
inadvertence, surprise or excusable neglect" (Matter of McKenna v
County of Nassau Off. of County Attorney, 61 NY2d 739, 742 [internal
quotation marks omitted]; see Long Is. Light Co. v Century Indem. Co., 52
AD3d 383, 384; Quinn v Guerra, 26 AD3d 872, 873).

***

Here, the defendant failed to establish grounds warranting relief under
CPLR 5015(a)(1)

***

In our view, this case does not warrant the invocation of a court's
inherent power to vacate its orders and judgment in the interest of
substantial justice. Notwithstanding the dissent's characterization,
there is nothing unique or unusual about this case. This Court has
previously found that claims of financial distress are not sufficient to
justify the exercise of the court's inherent discretionary power to
vacate its own judgment in the interests of substantial justice (see Matter of Dayton Towers Corp. v Gethers, 24
AD3d 663, 664). Simply stated, this is not an appropriate case in
which to exercise the broad equity power of a court to vacate its own
orders and judgment.
We note that the cases cited by the dissent for the proposition
that vacatur is warranted in the interest of substantial justice are
inapposite and/or distinguishable. For instance, in Ruben v American
and Foreign Ins. Co. (185 AD2d 63), the court vacated a judgment,
upon the "joint" motion and consent of the parties. Other cases relied
upon by the dissent, such as Government Empls. Ins. Co. v Employment
Commercial Union Ins. Co. (62 AD2d 123) and Soggs v Crocco (247
AD2d 887), did not involve a motion to vacate an order or judgment
entered upon default.

In May of 2009, I posted a case where the Appellate Division, Third Department, found facts sufficient to warrant vacatur in the interest of justice: Kostun
v Gower, 61 AD3d 1307 (App. Div., 3rd, 2009).  That case was also interesting because of FN 1.  In June of 2009, I posted a Appellate Division, First Department, case, where the court found sufficient facts: Diane
v Ricale Taxi, Inc., 2009 NY Slip Op 05680 (App. Div.,
1st, 2009).