CPLR § 3101 (facebook/myspace)

CPLR  3101 Scope of disclosure

Lentz v Nic's Gym Inc., 2010 NY Slip Op 06620 (App. Div., 2nd 2010)

CPLR 3101(a) is to be construed liberally so that there should be disclosure of any material that is even arguably relevant (see Shanahan v Bambino, 271 AD2d 519). However, "unlimited disclosure is not required, and supervision of disclosure is generally left to the trial court's broad discretion" (Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460, 461 [internal quotation marks omitted]; see Silcox v City of New York, 233 AD2d 494). The essential test is one based on "usefulness and reason" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [internal quotation marks omitted]). Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to direct the defendant to allow the plaintiff to inspect the gym mats which allegedly caused her to fall and sustain injuries, and in denying the defendant's cross motion for a protective order.

And here is a recent decision on interweb discovery. Look for many more in the future. 

Romano v Steelcase Inc., 2010 NY Slip Op 06620 (Supreme Court, Suffolk County 2010)

The present application was brought on by Order to Show Cause. The Court has reviewed the submissions both in favor of and in opposition to the relief sought, as well as the applicable federal statutory law, specifically the Stored [*2]Communications Act, 18 U.S.C. ¶ 2701 et seq., which prohibits an entity, such as Facebook and MySpace from disclosing such information without the consent of the owner of the account (see, 18 U.S.C. ¶ 2702(b)(3); Flagg v City of Detroit, 252 FRD 352 [ED Mich 2008]).

You can read more over at NFP.

Farked

Cheour v Pete & Sals Harborview Transp., Inc., 2010 NY Slip Op 06614 (App. Div., 2nd 2010)

Contrary to the Supreme Court's determination, the defendants failed to demonstrate, prima facie, 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 their motion, the defendants relied on, inter alia, the affirmed medical report of Dr. S. Farkas. In his report, Dr. Farkas, an orthopedist, noted during lumbar testing that the plaintiff had a "jog" of flexion and lateral bending, but he failed to compare those findings to what is normal (see Spanos v Harrison, 67 AD3d 893; Gibson-Wallace v Dalessandro, 58 AD3d 679). Furthermore, Dr. Farkas noted during his examination of the plaintiff that she had significant limitations in cervical spine, left knee, and left shoulder range of motion (see Mondevil v Kumar, 74 AD3d 1295; Smith v Hartman, 73 AD3d 736; Quiceno v Mendoza, 72 AD3d 669; Giacomaro v Wilson, 58 AD3d 802; McGregor v Avellaneda, 50 AD3d 749; Wright v AAA Constr. Servs., Inc., 49 AD3d 531). While Dr. Farkas stated that the plaintiff presented with "extreme exaggeration of symptoms" and that the decreased ranges of motion noted by him were "not true pathologic findings" and were instead exaggerated subjective complaints, he failed to explain or substantiate those conclusions with any objective medical evidence (see Reitz v Seagate Trucking, Inc., 71 AD3d 975; Bengaly v Singh, 68 AD3d 1030; Ortiz v S & A Taxi Corp., 68 AD3d 734).

The defendants also relied on the affirmed medical report of Dr. Sarasavani Jayaram, a neurologist, which also set forth significant limitations in the plaintiff's lumbar spine range of motion when the plaintiff was examined (see Mondevil v Kumar, 74 AD3d at 1295; Smith v [*2]Hartman, 73 AD3d at 736; Quiceno v Mendoza, 72 AD3d at 669; Giacomaro v Wilson, 58 AD3d at 802).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

The bold is mine.  For a discussion of this decision head over to JT's blog.

“CPLR 3216 ‘is extremely forgiving of litigation delay'”

CPLR R. 3216 Want of prosecution

Umeze v Fidelis Care N.Y., 2010 NY Slip Op 06603 (App. Div., 1st 2010)

"When served with a 90-day demand pursuant to CPLR 3216, it is incumbent upon a plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate the notice or extend the 90-day period" (Primiano v Ginsberg, 55 AD3d 709, 709 [2008]; see Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006], lv denied 8 NY3d 805 [2007]). Here, having done neither, to avoid dismissal, this pro se plaintiff was required to show both a "justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216[e]). Furthermore, CPLR 3216 "is extremely forgiving of litigation delay" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]), and "[t]he nature and degree of the penalty to be imposed on a motion to dismiss for want of prosecution is a matter of discretion with the court" (Espinoza v 373-381 Park Ave. S., LLC, 68 AD3d 532, 533 [2009]).

Based on the foregoing principles and under the circumstances presented, the motion court did not abuse its discretion in granting the motion to dismiss conditioned on plaintiff resuming prosecution of the action within 10 days of service of the order with notice of entry. Plaintiff's attempts to obtain counsel twice during this litigation indicate that there was no intent to abandon the action (see e.g. Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633-634 [2003]). This includes that, in response to the 90-day notice, plaintiff contacted an attorney who, in a September 15, 2008 letter, stated that his firm was considering substituting for the "pro se plaintiff" and requested an additional 30 days to decide whether to take the case. Thus, plaintiff clearly met with an attorney in an attempt to resume this litigation. There is also evidence in the record that counsel for the defense refused to call back plaintiff's initial counsel. Contrary to defendants' contention, the "complaint, verified by plaintiff on the basis of personal knowledge and which detailed [the defendants'] acts of negligence, was a sufficient affidavit of merits" (Salch v Paratore, 60 NY2d 851, 852-53 [1983]).

All concur except Gonzalez, P.J. and Catterson, J. who dissent in a [*2]memorandum by Catterson, J. as follows:

 

CATTERSON, J. (dissenting)

I must respectfully dissent because in my opinion, the motion court improvidently exercised its discretion by allowing the plaintiff additional time after he failed to file a note of issue in response to the defendants' 90-day demand, and failed to proffer a justifiable excuse for not so doing. Specifically, I disagree with the majority's reliance on the Court of Appeals' observation in Baczkowski v. Collins Constr. Co. (89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 850, 678 N.E.2d 460, 462 (1997)) that CPLR 3216 is "extremely forgiving of litigation delay." The Court's observation is made upon the recitation of precisely those statutory requirements – filing the note of issue or tendering a justifiable excuse for not so doing — with which the plaintiff in this case failed to comply.

Make sure to click on the case to read the remainder of the dissent.  The bold is mine.

Why Not? Write a law review article for Pace Law Review.

But give me a footnote or something cool.

The Editors of the Pace Law Review invite proposals from scholars and practitioners for our third annual issue on New York law that is slated for publication in Spring 2011. In the past, this book has examined a wide range of topics in New York law, including education, immigration, land use, and criminal procedure. The Review is most interested in timely pieces that comment on recently decided cases, areas of New York law that are quickly evolving, and issues that broadly impact the people of the State.

Please submit proposals of no more than 500 words to plr@law.pace.edu by October 15, 2010.  We welcome proposals for articles, essays, and book reviews.  All proposals should include the author’s name, title, institutional affiliation, contact information, and should concern issues related to the subject-matter described above.  Book review proposals should also include: (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g. the reviewer’s expertise or any relationship with the author).  Authors are also welcome, but not required, to submit a CV.  We expect to make publication offers by October 31, 2010. 

Completed manuscripts will be due December 1, 2010.

Best regards,

James Healy and Nicholas Tapert

Executive Articles Editors

Pace Law Review

CPLR § 511(b) Sufficiency of affidavit can’t be weighed, but contents may be considered.

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial 

HVT, Inc. v Safeco Ins. Co. of Am., 2010 NY Slip Op 06571 (App. Div., 2nd 2010)

On this appeal, we must determine whether an affidavit served by a plaintiff in accordance with CPLR 511(b) may be scrutinized to ensure that it does, in fact, "show[ ] either that the county specified by the defendant is not proper or that the county designated by him is proper," or if the mere service of such an affidavit, irrespective of its content, satisfies the plaintiff's burden. We hold that, while the sufficiency of the factual averments set forth in such affidavits may not be weighed, the contents of the affidavits may nonetheless be considered to confirm that the averments therein do indeed "show[ ] either that the county specified by the defendant is not proper or that the county designated by [the plaintiff] is proper" as required by the statute (CPLR 511[b]).

It's a long decision, but it's worth reading.  I'll add more later.

 

A Class Denied

CPLR § 901 Prerequisites to a class action

Corsello v Verizon N.Y., Inc., 2010 NY Slip Op 06563 (App. Div., 2nd 2010)

Contrary to the plaintiffs' contentions, the Supreme Court properly denied their motion, inter alia, for class action certification. The Supreme Court properly found that the proposed class definition was overbroad (see Klein v Robert's Am. Gourmet Food, Inc., 28 AD3d 63, 71). Furthermore, the plaintiffs failed to establish that questions of law or fact common to the class predominate over any questions affecting only individual members (see CPLR 901[a][2]; Morrissey v Nextel Partners, Inc., 72 AD3d 209; Solomon v Bell Atl. Corp., 9 AD3d 49, 53; Hazelhurst v Brita Prods. Co., 295 AD2d 240, 241-242; Small v Lorillard Tobacco Co., 252 AD2d 1, 9, affd 94 NY2d 43; Mitchell v Barrios-Paoli, 253 AD2d 281, 291), and that their claims or defenses were typical of those of the class (see CPLR 901[a][3]; Dimich v Med-Pro, Inc., 34 AD3d 329, 330; Ross v Amrep Corp., 57 AD2d 99, 102-103).

Two no-fault decisions from App. Term. 1st

Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51605(U) (App. Term, 1st 2010)

Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint by establishing that it mailed the notices requiring the principal of plaintiff medical services provider to appear for an examination under oath (EUO) and that the principal failed to appear for such an examination (see generally Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). In opposition, plaintiff failed to raise a triable issue, and its arguments in opposition to defendant's motion are unpersuasive. Defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an EUO provision, since the subject claim arose out of an accident that occurred in 2007, at a time when the policy necessarily would have contained such a provision (see Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U]; cf. SZ Med. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A], 2005 NY Slip Op 51842[U] [2005]). In any event, even assuming, arguendo, that the policy did not contain an EUO provision, the policy would be construed as though it did (see Insurance Law § 5103[h]). Moreover, contrary to Civil Court's conclusion, an EUO need not be scheduled within 30 days of defendant-insurer's receipt of the claim (see Eagle Surgical Supply Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [2008]). Thus, defendant was entitled to summary judgment dismissing the complaint based upon plaintiff's failure to comply with a condition precedent to coverage (see generally Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]).

Socrates Med. Health, P.C. v Motor Veh. Acc. Indem. Corp., 2010 NY Slip Op 51606(U) (App. Term, 1st 2010)

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing form had been mailed and received, and that payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]). We note in this connection that the affidavit of plaintiff's employee attesting to plaintiff's standard office mailing procedures created a presumption of mailing of the subject claim, and, in any event, defendant acknowledged receipt of the claim (see Fair Price Med. Supply Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]). In opposition, defendant, which bore the burden of proving its lack of coverage defense (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]), failed to raise a triable issue on this point, since it offered no competent evidence showing that the plaintiff's assignor's loss arose from the use or operation of an uninsured motor vehicle (see Insurance Law § 5221[b]).

We reject defendant's contention that, pursuant to Insurance Law § 5225, it is exempt from paying plaintiff "statutory interest, statutory attorneys' fees and costs," since the plain language of that statute only exempts defendant from paying certain "taxes and fees" imposed by state and local governments. Defendant's remaining contentions are unpreserved for appellate review, and, in any event, are without merit.

In the MVAIC case, the § 5225 argument was absolute nonsense.  In a sort of related note, I'm looking for the case that says MVAIC gets an automatic stay on appeals.

Civil Court and Counterclaims and Cross claims

It's a jurisidctional thing

51 W. 86th St. Assoc. LLC v Fontana, 2010 NY Slip Op 51602(U) (App. Term, 1st 2010)

Civil Court should not have adjudicated Degala's cross claim against tenants seeking to recover the rent overcharge and related treble damages. By that cross claim, Degala sought to recover approximately $23,000 in compensatory damages and, after the trebling of those damages, a total of approximately $69,000 in damages. Since Degala asserted a single cross claim beyond the monetary jurisdiction of the Civil Court — $25,000 — the court lacked subject matter jurisdiction over that claim (see 1443 York Ave. Realty Co. v Ronning, 12 Misc 3d 142[A], 2006 NY Slip Op 51401[U] [2006]; see also Herbert v Jerome, 14 Misc 3d 141[A], 2007 NY Slip Op 50351[U] [2007]). We note in this connection that, while Civil Court has subject matter jurisdiction to hear and adjudicate counterclaims without regard to the amount sought (CCA 208[b], 211; see PRAPL 743), it has no similar jurisdiction with respect to cross claims (see 125 Church St. Dev. Co. v Grassfield, 170 Misc 2d 31 [1996]; Scherer & Fisher, Residential Landlord-Tenant Law in NY §§ 7:56, 10:11 [2009 ed]; Siegel, NY Prac § 19 [4th ed]). For similar reasons, Civil Court lacked subject matter jurisdiction over tenants' cross claims sounding in tort against Degala — each of which sought damages in excess of Civil Court's monetary jurisdiction. Therefore, we vacate those portions of the order addressing the merits of Degala's and tenants' respective cross claims, and dismiss said claims without prejudice (see CPLR 205; see generally Bing v Fairfield Presidential Mgt. Corp., 5 Misc 3d 130[A], 2004 NY Slip Op 51297[U] [2004]).

So, in short:  Counterclaims over $25,000.00 (OK); Cross claims over $25,000.00 (Hell no).

Cheer Up

Brill and CPLR R. 3211(a)(7)

CPLR R. 3211(a)(7), as most of you know, permits a motion to dismiss because the complaint fails to state a cause of action.  Unlike CPLR R. 3212, there is no 120-day timeline.  The standard of review is different as well.[1]  You can make the motion at any time.[2] But it needs to be converted.  See, Rich v. Lefkovits, 56 N.Y.2d 276 (Ct. App. 1982).

But can you get around CPLR R. 3212's 120-day timeline[3] by calling your summary judgment motion as motion to dismiss.  The short answer is no;[4] however, an explanation is required.

CPLR R. 3211(a)(7) should be used to weed out those complaints that don’t state a cause of action.  That’s it.  A complaint either states a cause of action or doesn’t.  Affidavits aren’t appropriate.  But, if an affidavit is attached, the motion turns into a different animal—it shouldn’t, but it generally does.  No longer will the court limit its inquiry into whether the complaint states a cause of action; now the inquiry is, does the plaintiff have a cause of action.  Whether a plaintiff states a cause of action or has a cause of action is a different question than whether the plaintiff will ultimately be successful, which is “not part of the calculus in determining a motion to dismiss.”[5]

Whether a plaintiff will ultimately be successful is fodder for a motion for summary judgment.  It follows then, that any motion made under 3211(a)(7) that isn’t directed at the pleadings is a summary judgment motion is disguise.[6]  That disguised motion is subject CPLR 3212’s 120-day timeline.  But to get back to my earlier point, any motion to dismiss under (a)(7) that utilizes and affidavit, is not proper.  I don’t care what anyone says.  If the motion doesn’t fit within 3211, then it’s a 3212 motion, subject to the time limit.

Now the question is why should it be subject to the time limit.  The answer is Brill v City of New York, 2 NY3d 648 (Ct. App. 2004).[7]  The Court of Appeals could have modified or completely done away with Brill in Crawford v Liz Claiborne, Inc., 11 NY3d 810 (Ct. App. 2008), but it didn’t.  It remains good law.

There is no reason to permit disguised summary judgment motions, no matter how meritorious, under CPLR R. 3211(a)(7).  Otherwise, Brill is meaningless.  Motions made under (a)(7) that are converted to Summary Judgment motions or those 3211(a)(7) motions were both parties charted a summary judgment course shouldn’t be permitted either.

If anyone is interested, JT’s post prompted me to write this post.

 

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[1] “In assessing a motion to dismiss made pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and are accorded every favorable inference.” Garner v China Natural Gas, Inc., 2010 NY Slip Op 02095 (App. Div., 2nd, 2010)

[2] For some interesting reading check out Butler v Catinella, 58 AD3d 145(App. Div., 2^nd 2008), where the Appellate Division, Second Department corrected itself, and allowed the defense to be interposed in an answer.

[3] This is a hard timeline, with very little wiggle room.  Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)

[4] Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010); West Broadway Funding Assoc. v Friedman, 2010 NY Slip Op 04781 (App. Div., 2nd, 2010)

[5] Crepin v Fogarty, 2009 NY Slip Op 01272 (App. Div., 2nd, Feb. 19, 2009).  See also; Etzion v Etzion, 2009 NY Slip Op 03688 (App. Div., 2nd, 2009)

[6] In most, but not all cases.  It is possible that the 3211(a)(7) isn’t a disguised summary judgment motion; that it is just a garbage motion.

[7]

We conclude that "good cause" in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute—only the movant can show good cause—as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be "good cause."