A chuckle-head move

I hardly ever pick up a newspaper, and when I do, I usually spend my time looking at the office supply circulars, but today I read an article.  Midway through the article I found this gem:

It was such a chuckle-headed move that no one was sure whether the prosecutors had forgotten teh jduge's ruling or were trying to sneak the testimony through a back door.¹

The article discusses the recent Roger Clemens mistrial, a result of the prosecution doing pretty much exactly what the judge told them not to do.  Obviously the case is bigger than the quote, but I really like the term "chuckle-head" and was excited to see it used in the NYT.  If you want to read more about the case, read the article, and read this post.

This post will soon be buried in updates with the cases I've been meaning to post, so, if you don't want to read a post on books, office supplies, and other nonsense, you can stop here.  It won't hurt my feeling.

Between now and the last time I wrote about what I'm reading, I picked up more books.  They are:

• The Redbook: A Manual on Legal Style (2d Ed.)
• Writing with Style: Conversations on the Art of Writing (3rd Edition)
• Logic for Lawyers : A Guide to Clear Legal Thinking
• Winning on Appeal: Better Briefs & Oral Argument
• New York civil appellate practice (West's New York practice series)(I got this new for 16 bucks or so)
• Federal Civil Judicial Procedure and Rules, 2011 ed.

That's it for the law books. 

I also bought and read the new Erik Larson book, In the Garden of Beasts: Love, Terror, and an American Family in Hitler's Berlin, and like his other books, it did not dissapoint.  I know I give horrible book reviews, but they aren't really book review–more like, hey, this is what I'm reading.  Before that, I read Extreme Fear, by Jeff Wise.  Lately I've been keeping a list–in one of my many notebookls–of the books I want to read.  It's a short list, but I think it is a good one:

• The Pale King by David Foster Wallace
• The Devil All the Time by Donald Ray Pollock
• Bury My Heart at Wounded Knee: An Indian History of the American West by Dee Brown and Hampton Sides
• The Journalist and the Murderer by Janet Malcolm
• My Friend the Mercenary by James Brabazon
• Matterhorn: A Novel of the Vietnam War by Karl Marlantes
• SEAL Team Six: Memoirs of an Elite Navy SEAL Sniper by Howard E. Wasdin and Stephen Templin
• Clarence Darrow: Attorney for the Damned by John A. Farrell
• Those Guys Have All the Fun: Inside the World of ESPN by James Andrew Miller and Tom Shales
• The Glass Castle: A Memoir by Jeannette Walls
• Moonwalking with Einstein: The Art and Science of Remembering Everything by Joshua Foer
• Drive: The Surprising Truth About What Motivates Us by Daniel H. Pink
• Your Money or Your Life: 9 Steps to Transforming Your Relationship with Money and Achieving Financial Independence: Revised and Updated for the 21st Century by Joe Dominguez and Vicki Robin

And in the office supply department, I picked up a few Whitelines notebooks.  I used to be all about the Rhodia, but now I'm torn.

———————-

1. July 17, 2011.  NYT, Sunday Review, "Why are prosecutors striking out," Maureen Dowd.  I might fix the cite later.

Bad Subpoena: everyone gets sanctioned

22 NYCRR 130-1.1 Costs; sanctions

Duval v Duval, 2011 NY Slip Op 05657 (App. Div., 2nd 2011)

Contrary to the plaintiff's contention, under the particular circumstances of this case, the appeal from the judgment brings up for review the orders dated January 22, 2010, and January 26, 2010 (see CPLR 5501[a][1]).

The Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1. Under the circumstances presented, the conduct of the plaintiff and her counsel in obtaining a "so-ordered" subpoena duces tecum and serving it upon Long Island Jewish Medical Center to obtain the defendant's medical records prior to filing a note of issue and before a trial date was set was frivolous within the meaning of 22 NYCRR 130-1.1(c), as it was completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1[c]). Contrary to the defendant's contention, pretrial disclosure on the issue of child custody is permissible with respect to a parent's  health, since the parties to a contested custody proceeding place their physical and mental conditions in issue (see Torelli v Torelli, 50 AD3d 1125, 1125; Anonymous v Anonymous, 5 AD3d 516, 517; Rosenblitt v Rosenblitt, 107 AD2d 292, 293-294). Here, however, in her attempt to obtain pretrial disclosure of the defendant's medical records in connection with the issue of child custody, the plaintiff sought a "so-ordered" trial subpoena duces tecum from the Supreme Court, thereby obviating the need to obtain the defendant's written authorization to release the records. The plaintiff also failed to serve the subpoena on the defendant in a timely manner, thus depriving him of the opportunity to request withdrawal of the subpoena or to make a timely motion to quash. Moreover, it can be inferred from the record that the challenged conduct was designed primarily to harass and maliciously injure the defendant (see 22 NYCRR 130-1.1[c]). In view of the foregoing, that branch of the defendant's motion which was to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1 should have been granted, and accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing on the issue of the amount of an appropriate sanction to be imposed upon the plaintiff and her counsel.

Furthermore, the Supreme Court improvidently exercised its discretion in denying, with limited exception, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena duces tecum served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information. Under the circumstances of this case, suppression and preclusion, along with the imposition of a sanction, were the appropriate remedies for the improper manner in which those records were obtained (see CPLR 3103[c]). Accordingly, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information should have been granted in its entirety, with a directive that the plaintiff and her counsel deliver all records produced in response to the aforementioned subpoena to the defendant and to affirm that all such records, and any copies thereof, have been so returned and/or destroyed and were not transmitted to any third party.

 

Unjust Enrichment

Superior Officers Council Health & Welfare Fund v Empire HealthChoice Assur., Inc., 2011 NY Slip Op 05625 (App. Div., 1st 2011)

The unjust enrichment or quasi contract claim was similarly precluded by the existence of a valid agreement governing the subject matter of plaintiffs' claim (id. at 388). Plaintiffs also failed to state a claim under General Business Law § 349 because the conduct alleged in the complaint was not consumer-oriented (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 320 [1995]). Finally, the claim based on the implied covenant of good faith and fair dealing was redundant since it is intrinsically tied to the
damages sought under the contract claim (see Bostany v Trump Org. LLC, 73 AD3d 479, 481 [2010]).

Beach v Touradji Capital Mgt. L.P., 2011 NY Slip Op 05621 (App. Div., 1st 2011)

"A quasi contract' only applies in the absence of an express agreement . . . in order to prevent a party's unjust enrichment" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]). Plaintiffs should have been permitted to plead both contract and quasi-contract claims in the alternative (see Winick Realty Group LLC v Austin & Assoc., 51 AD3d 408 [2008]). The court erred in dismissing plaintiff's unjust enrichment claim since it was based on allegations that defendants were unjustly enriched by withholding plaintiffs' 2005 compensation and reinvesting it without their permission, and no contract governing those actions existed. The court also erred in concluding, at this pleading stage, that plaintiffs' compensation did not constitute "wages" under Labor Law § 190, because plaintiffs alleged that the compensation was not "entirely discretionary" and was based on plaintiffs' "own personal productivity," and not solely upon defendants' overall financial success (see Truelove v Northeast Capital & Advisory, 95 NY2d 220 [2000]).

1133 Taconic, LLC v Lartrym Servs., Inc., 2011 NY Slip Op 05470 (App. Div., 2nd 2011)

"To prevail on a claim of unjust enrichment, a plaintiff must establish that the defendant benefitted at the plaintiff's expense and that equity and good conscience require restitution" (Whitman Realty Group, Inc. v Galano, 41 AD3d 590, 592-593; see Cruz v McAneney, 31 AD3d 54, 59). "Enrichment alone will not suffice to invoke the remedial powers of a court of equity. Critical is that under the circumstances and as between the two parties to the transaction the enrichment be unjust" (McGrath v Hilding, 41 NY2d 625, 629; see Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678, 680).

Chi Kee Pang v Synlyco, Ltd., 2011 NY Slip Op 08553 (2nd Dept., 2011)

The Supreme Court correctly determined that the instant action was time-barred under the applicable statutes of limitations. The cause of action to recover damages for breach of contract is barred by the six-year statute of limitations (see CPLR 213[2]). The plaintiff's contention that the statute of limitations was tolled by the defendants' acknowledgment of the parties' alleged oral agreement is without merit, since the plaintiff failed to submit a writing to that effect, and General Obligations Law § 17-101 provides, in relevant part, that, with certain exceptions not applicable here, "[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provision of limitations of time for commencing actions under the civil practice law and rules"(emphasis supplied) (cf. Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 815). The cause of action to recover damages for unjust enrichment, which is indistinguishable from the breach of contract cause of action, is, consequently, also barred by the six-year statute of limitations set forth in CPLR 213(2) (see EMD Constr. Corp. v New York City Dept. of Hous. Preserv. & Dev., 70 AD3d 893, 894; 37 Park Dr. S., Inc. v Duffy, 63 AD3d 1040, 1041). The cause of action to recover damages for fraud is time-barred inasmuch as the action was not commenced within six years of the date on which the cause of action accrued or within two years after the time the plaintiff could with reasonable diligence have discovered the fraud (see CPLR 213[8]; Prand Corp. v County of Suffolk, 62 AD3d 681, 683; Pericon v Ruck, 56 AD3d 635, 636). Contrary to the plaintiff's contention, the doctrine of equitable estoppel is unavailable to toll the statute of limitations since, in response to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether any action or representation by the defendants induced him to forego the timely commencement of an action to enforce his rights under the alleged oral agreement (see Javaheri v Old Cedar Dev. Corp., 84 AD3d 881, 886; Jones v Safi, 58 AD3d 603, 604).

RJ and CE and EE

Breslin Realty Dev. Corp. v Shaw, 2010 NY Slip Op 00087 (App. Div., 2nd, 2010)

II. Res Judicata and Collateral Estoppel

Under the doctrine of res judicata, a final judgment precludes reconsideration of all claims which could have or should have been litigated in the prior proceedings against the same party (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347). The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in the prior action or proceeding, and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (see Ryan v New York Tel. Co., 62 NY2d 494, 501-502). Once the party seeking the benefit of collateral estoppel establishes that the identical issue was "material" (emphasis supplied) to a prior judicial or quasi-judicial determination, the party to be estopped bears the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action or proceeding (id.). Contrary to the determination of the Supreme Court, the proponent of the doctrine of collateral estoppel need not demonstrate that the particular theory in support of a cause of action was actually raised and litigated in the prior action or proceeding (see Matter of Schulz v New York State Legislature, 278 AD2d 710, 711; Williams v Steinberg, 211 AD2d 597; Lanzano v City of New York, 202 AD2d 378, 379; Sokol v Sokol, 113 F3d 303, 306).

Where the prior adjudication involved the same parties and the same cause of action, res judicata applies. "Under res judicata, or claim preclusion, a valid final judgment bars future actions between the parties on the same cause of action . . . As a general rule, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347, quoting O'Brien v City of Syracuse, 54 NY2d 353, 357; see Insurance Co. of State of Pa. v HSBC Bank USA, 10 NY3d 32).

Union St. Tower, LLC v Richmond, 2011 NY Slip Op 03834 (App. Div., 2nd 2011)

The doctrine of res judicata " operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding'" (Luscher v Arrua, 21 AD3d 1005, 1006-1007, quoting Koether v Generalow, 213 AD2d 379, 380). To determine what "factual grouping" constitutes a "transaction," the court must consider how " the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether . . . their treatment as a unit conforms to the parties' expectations or business understanding or usage'" (Smith v Russell Sage Coll., 54 NY2d 185, 192-193, quoting Restatement, Judgments 2d [Tent Draft No. 1], § 61; see Braunstein v Braunstein, 114 AD2d 46, 53). Under New York's transactional approach to the doctrine of res judicata, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357).

The first and second counterclaims in this action are barred by res judicata because those claims could have been resolved in the March 2004 action (see Jennings v City of Glens Falls Indus. Dev. Agency, 9 AD3d 773, 774). These counterclaims, when compared with the causes of action in the March 2004 action "are related in time, space, origin, [and] motivation" (Smith v Russell Sage Coll., 54 NY2d at 192-193). They (1) originate from the identical agreement, (2) span the same period of time, (3) involve the same chief participants, and (4) involve the same motivation of Richmond to reclaim an ownership interest in Lot 4. "Under these circumstances, it is almost impossible to resist the conclusion that the over-all transaction here formed a convenient trial unit and that this view conforms to reasonable expectations" (Smith v Russell Sage Coll., 54 NY2d at 193 [internal quotation marks omitted]).

Vitello v Amboy Bus Co., 83 AD3d 932 (App. Div., 2nd 2011)

Under the doctrine of collateral estoppel, a party is precluded from "relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). Two elements must be established: (1) that "the identical issue was necessarily decided in the prior action and is decisive in the present action"; and (2) that the precluded party "must have had a full and fair opportunity to contest the prior determination" (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). Collateral estoppel is applicable to quasi-judicial determinations of administrative agencies, including the WCB (see Ryan v New York Tel. Co., 62 NY2d at 499; O'Gorman v Journal News Westchester, 2 AD3d 815, 816 [2003]; Rigopolous v American Museum of Natural History, 297 AD2d 728, 729 [2002]).

Here, the Decision of the WCB does not collaterally estop the defendant from arguing that it was the plaintiff's employer, because there is no indication in the record that this was a disputed issue at the workers' compensation proceeding or that the WCB specifically adjudicated this issue (see Weitz v Anzek Constr. Corp., 65 AD3d 678, 679 [2009]; Caiola v Allcity Ins. Co., 257 AD2d 586, 587 [1999]). Therefore, the Supreme Court improperly concluded that the defendant was collaterally estopped from arguing that it was the plaintiff's employer.

John Hollings, Inc. v Nick & Duke, LLC, 83 AD3d 444 (App. Div., 1st 2011)

The issue whether plaintiff was wrongfully deprived of its use of the subject premises was fully and fairly litigated, and necessarily decided, in the prior Civil Court proceeding (see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). Plaintiff's eviction was based on uncured lease violations alone and had no connection to the wrongs it alleges against defendants in this action.

We find that plaintiff's conduct in commencing this action was frivolous within the meaning of 22 NYCRR 130-1.1.

Town of Huntington v Beechwood Carmen Bldg. Corp., 82 AD3d 1203 (App. Div., 2nd 2011)

"Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" (Goldstein v Massachusetts Mut. Life Ins. Co., 32 AD3d 821, 821 [2006]; see Greenstone/Fontana Corp. v Feldstein, 72 AD3d 890, 893 [2010]). "A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata" (Liberty Assoc. v Etkin, 69 AD3d 681, 682-683 [2010]; see Greenstone/Fontana Corp. v Feldstein, 72 AD3d at 893). Here, the Town's current claims against SBJ were either raised or could have been raised in the previous action which was discontinued with prejudice against SBJ and, thus, the Town is precluded under principles of res judicata from litigating claims against SBJ arising from the same transaction. Accordingly, the complaint was properly dismissed insofar as asserted against SBJ.

OrthoTec, LLC v Healthpoint Capital, LLC, 2011 NY Slip Op 04533 (App. DIv., 1st 2011)

To be sure, "collateral estoppel will bar the subsequent independent action . . . if . . . the moving party was in fact given a hearing on the motion that was the equivalent of a trial with oral testimony" (id. at 668, 123 Cal Rptr 2d at 170-171 [emphasis added]). However, plaintiff was not given such a hearing. It was given the opportunity for a hearing, but it chose not to exercise that opportunity.

Defendants' reliance on Barker v Hull (191 Cal App 3d 221, 226, 236 Cal Rptr 285, 289 [1987]) is unavailing, since the evidence on the motion which led to the decision to which defendants seek to give preclusive effect was indeed restricted.

Dier v Suffolk County Water Auth., 2011 NY Slip Op 03993 (App. Div., 2nd 2011)

The Supreme Court erred in concluding that the appellant is estopped from asserting a defense based on the plaintiff's failure to serve a timely notice of claim. Equitable estoppel against a public corporation will lie only when the conduct of the public corporation was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim, and when that conduct was justifiably relied upon by that party (see Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Dorce v United Rentals N. Am., Inc., 78 AD3d 1110, 1111; Vandermast v New York City Tr. Auth., 71 AD3d 1127; Mohl v Town of Riverhead, 62 AD3d 969; Wade v New York City Health & Hosps. Corp., 16 AD3d 677). Here, the plaintiff failed to demonstrate that the appellant engaged in any misleading conduct that would support a finding of equitable estoppel (see Dorce v United Rentals N. Am., Inc., 78 AD3d at 1111; Wade v New York City Health & Hosps. Corp., 16 AD3d 677; Walter H. Poppe Gen. Contr. v Town of Ramapo, 280 AD2d 667, 668; Cappadonna v New York City Tr. Auth., 187 AD2d 691, 692; Nicholas v City of New York, 130 AD2d 470). The fact that the appellant conducted an examination pursuant to General Municipal Law § 50-h prior to making its motion to dismiss does not justify a finding of estoppel (see Hochberg v City of New York, 63 NY2d 665; Wade v New York City Health & Hosps. Corp., 16 AD3d 677; Rodriguez v City of New York, 169 AD2d 532, 533; Ceely v New York City Health & Hosps. Corp., 162 AD2d 492). Accordingly, the appellant's motion, in effect, to dismiss the complaint insofar as asserted against it for the plaintiff's failure to serve a timely notice of claim pursuant to General Municipal Law § 50-e(5) should have been granted.

CPLR 5513 5701 5526 3212b 5501

CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal

CPLR § 5701 Appeals to appellate division from supreme and county courts

CPLR R. 5526 Content and form of record on appeal

CPLR § 5501 Scope of review

CPLR R. 3212 Motion for summary judgment

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

We reject plaintiffs' contention that the appeal is untimely because defendant filed its notice of appeal 32 days after it was served electronically with notice of the entry of the order (see CPLR 5513[a]). A New York State Court Electronic Filing (NYSCEF) site confirmation shows the date on which the order with notice of entry was filed electronically and e-mail notifications were sent to counsel for the parties. However, the NYSCEF site's transmission of notification of the entry to e-mail service addresses "shall not constitute service of notice of entry by any party" (22 NYCRR 202.5b[h][3]). "A party shall serve notice of entry of an order . . . on another party by serving a copy of the notification . . . and an express statement that the transmittal constitutes notice of entry" (id.). The only affidavit of service in the record shows that the notice of entry was served on defendant by mail. Thus, defendant had 35 days to notice its appeal (see CPLR 2103[b][2]).

Gross v 141-30 84th Rd. Apt. Owners Corp., 2011 NY Slip Op 04746 (App. Div., 1st 2011)

Although Supreme Court's order was not appealable as of right because it did not decide a motion made on notice (see CPLR 5701[a][2]), in the interest of judicial economy, we nostra sponte deem the notice of appeal a motion for leave to appeal and grant the motion (see CPLR 5701[c]; Winn v Tvedt, 67 AD3d 569 [2009]).

Supreme Court erred in granting plaintiff's application, since plaintiff failed to show that defendants' noncompliance with the court's discovery orders was "willful, contumacious or due to bad faith" (Weissman v 20 E. 9th St. Corp., 48 AD3d 242, 243 [2008]; Dauria v City of New York, 127 AD2d 459, 460 [1987]). Indeed, the record shows that defendants provided plaintiff with the discovery owed pursuant to Supreme Court's most recent order. Prior to that order, most of the delays in the discovery schedule were due to plaintiff's actions. Where, as here, delays in discovery were caused by both parties' actions, the unilateral and drastic sanction of striking the pleadings is inappropriate (Daimlerchrysler Ins. Co. v Seck, 82 AD3d 581 [2011]; Sifonte v Carol Gardens Hous. Co., 70 AD2d 563, 564 [1979]).

Block 6222 Constr. Corp. v Sobhani, 2011 NY Slip Op 04614 (App. Div., 2nd 2011)

"It is the obligation of the appellant to assemble a proper record on appeal, which must contain all of the relevant papers that were before the Supreme Court" (Wen Zong Yu v Hua Fan, 65 AD3d 1335, 1335; see CPLR 5526; Cohen v Wallace & Minchenberg, 39 AD3d 689; Matter of Remy v Mitchell, 60 AD3d 860). Since, under the circumstances, the record here is inadequate to enable this Court to render an informed decision on the merits, the appeal must be dismissed (see Emco Tech Constr. Corp. v Pilavas, 68 AD3d 918, 918-919; Matter of Allstate Ins. Co. v Vargas, 288 AD2d 309, 310).

Cocom-Tambriz v Surita Demolition Contr., Inc., 2011 NY Slip Op 04622 (App. Div., 2nd 2011)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Harsch v City of New York, 78 AD3d 781, 784; Nassau Plaza Assoc., L.P. v Greater N.Y. Mut. Ins. Co., 74 AD3d 1159, 1160). Accordingly, upon searching the record, we award summary judgment to the defendants third-party plaintiffs on the issue of whether the plaintiff sustained a grave injury.

Williams v New York City Health & Hosps. Corp., 2011 NY Slip Op 04662 (App. Div., 2nd 2011)

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

Venue and Jurisdiction

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Non Con

CPLR R. 327 Inconvenient forum

CRT Invs., Ltd. v BDO Seidman, LLP, 2011 NY Slip Op 04816 (App. DIv., 1st 2011)

This litigation arises out of plaintiffs' investment in the Ascot Fund, Limited, a Cayman Islands hedge fund audited by BDO Tortuga, which was a "feeder fund" for Ascot Partners, L.P., a New York hedge fund audited by BDO Seidman. Plaintiffs asserted causes of action for fraud, aiding and abetting fraud, negligence, and gross negligence against these outside auditors for failing to disclose that the fund was ultimately managed by Bernard Madoff.

Plaintiffs failed to meet their burden of demonstrating the existence of personal jurisdiction over BDO Tortuga under New York's long arm statute (Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 95 [2010]). Plaintiffs failed to rebut defendant's affidavit (see Roldan v Dexter Folder Co., 178 AD2d 589, 590 [1991]), which established that BDO Tortuga has no presence in New York, that it performed the audit of the Ascot Fund in the Cayman Islands, pursuant to engagement letters executed in, and sent from, the Cayman Islands, and that there were only limited emails with anyone in New York "affiliated in any way with Ascot Fund." Although plaintiffs argue that BDO Tortuga relied upon the audit work that BDO Seidman had performed with respect to the existence and valuation of Ascot Partners and Ascot Fund's investments, there is no basis to conclude that BDO Tortuga should have reasonably expected to defend its actions in New York (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 466 [1988]). All of the relevant parties to the cause of action (plaintiff, defendant, and audit client), and all of the work that BDO Tortuga performed were in the Cayman Islands. Nor does sending a few emails and engagement letters into New York alter this result (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434 [2006], lv denied 9 NY3d 803 [2007]).

Plaintiffs' alternative argument, that BDO Tortuga is subject to personal jurisdiction under CPLR 302(a)(3), is also unavailing. In the context of a commercial tort, where the damage is solely economic, the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred (see O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 201-02 [2003]; Mid-Atlantic Residential Invs. Ltd. Partnership v McGuire, 166 AD2d 205, 206-07 [1990]). Plaintiff's claim that it was sold the investment in New York is irrelevant, because the injury did not arise out of its purchase of the investment here, but, rather, out of BDO Tortuga's alleged failure to appropriately perform its audit services. Defendants' affidavit also established that BDO Tortuga did not derive "substantial revenue" from interstate or international commerce (see LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]).

Berk v Linnehan, 2011 NY Slip Op 04820 (App. Div., 1st 2011)

The court properly denied defendants' motion for a change of venue to Suffolk County. Defendants failed to make the requisite showing that their allegedly inconvenienced non-party witnesses were actually contacted and were willing to testify (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]; Gluck v Pond House Farm, Inc., 271 AD2d 334 [2000]; CPLR 510[3]). Defendants also failed to set forth the substance and materiality of the testimony of at least two of the three witnesses.

Koskar v Ford Motor Co., 2011 NY Slip Op 04636 (App. Div., 2nd 2011)

The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that "in the interest of substantial justice the action should be heard in another forum" (CPLR 327[a]). The defendant bears the burden on a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479, cert denied 469 US 1108). "On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system" (Tiger Sourcing Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002, 1003; see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966). No one factor is dispositive (see Turay v Beam Bros. Trucking, Inc., 61 AD3d at 966; Brinson v Chrysler Fin., 43 AD3d 846, 848). The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Smolik v Turner Constr. Co., 48 AD3d 452, 453-454; Brinson v Chrysler Fin., 43 AD3d at 848). 

Here, the defendant Sail Trans Corp. failed to meet its burden of establishing that New York is an inconvenient forum for this consolidated action. Thus, the Supreme Court's determination denying that branch of its motion which was to dismiss the complaint insofar as asserted against it on the ground of forum non conveniens was not an improvident exercise of discretion (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Salzstein v Salzstein, 70 AD3d 806; Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028).

That branch of the appellant's motion which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(4) was not addressed by the Supreme Court and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543).

U.S. Bank, Natl. Assn. v Arias, 2011 NY Slip Op 05487 (App. DIv., 2nd 2011)

By order to show cause dated January 27, 2010, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The Supreme Court denied the defendant's motion in its entirety, without conducting a hearing. We reverse. 

"A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370).

Here, the Supreme Court erred in determining the defendant's motion without first conducting a hearing. The process server's affidavits constituted prima facie evidence of proper service (see Scarano v Scarano, 63 AD3d at 716). However, to rebut that showing, the defendant submitted a sworn denial of service containing specific facts to rebut the presumption of proper service. Furthermore, in replying to contentions raised by the plaintiff in its opposition papers, the defendant submitted documentary evidence supporting his claim that he did not reside at the subject premises or at the Long Island City address in 2008. The defendant's submission was sufficient to rebut the prima facie showing of proper service, and to necessitate a hearing. Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308(2), and for a new determination thereafter of his motion to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

Sufficient Start

Marist Coll. v Brady, 2011 NY Slip Op 04638 (App. Div., 2nd 2011)

Under the circumstances, the Supreme Court properly exercised its discretion in deciding, on the merits, that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (see Fugazy v Fugazy, 44 AD3d 613, 614). As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden of proof on this issue (see Alden Personnel, Inc. v David, 38 AD3d 697, 698; Brandt v Toraby, 273 AD2d 429, 430). To successfully oppose a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, the plaintiff did not need to make a prima facie showing of jurisdiction, but instead only needed to set forth "a sufficient start, and [show its] position not to be frivolous" (Peterson v Spartan Indus., 33 NY2d 463, 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624; American BankNote Corp. v Daniele, 45 AD3d 338, 340; Cordero v City of New York, 236 AD2d 577, 578).

Since the plaintiff established that facts " may exist'" to exercise personal jurisdiction over the appellants and has made a "sufficient start" to warrant further discovery on that issue, the Supreme Court properly denied that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (Peterson v Spartan Indus., 33 NY2d at 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624; Castillo v Star Leasing Co., 69 AD3d 551, 552; cf. Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794; Roldan v Dexter Folder Co., 178 AD2d 589, 589). However, since the plaintiff failed to demonstrate, prima facie, that the appellants were subject to the Supreme Court's long-arm jurisdiction pursuant to CPLR 302(a)(3)(ii) (cf. Alden Personnel, Inc. v David, 38 AD3d at 698), we modify the order appealed from to allow the appellants to seek dismissal of the complaint pursuant to CPLR 3211(a)(8) upon the completion of discovery (see Ying Jun Chen v Lei Shi, 19 AD3d 407, 407-408; Lettieri v Cushing, 80 AD3d 574, 575-576).

HBK Master Fund L.P. v Troika Dialog USA, Inc., 2011 NY Slip Op 05569 (App. Div., 1st 2011)

Plaintiffs made a "sufficient start" in demonstrating that the Russian defendants were doing business in New York through their direct or indirect subsidiaries to warrant further discovery on the issue of personal jurisdiction, including whether the parents exercised control over the subsidiaries and are therefore subject to New York's long-arm jurisdiction (see Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]; Edelman v Taittinger, S.A., 298 AD2d 301, 302 [2002]).

OrthoTec, LLC v Healthpoint Capital, LLC, 2011 NY Slip Op 04533 (App. Div., 1st 2011)

We do not find that "in the interest of substantial justice the action should be heard in" France (see CPLR 327[a]). "Generally, unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed" (Anagnostou v Stifel, 204 AD2d 61, 61 [1994] [internal quotation marks and citations omitted]). This is true even though plaintiff is not a New York resident (see Travelers Cas. & Sur. Co. v Honeywell Intl. Inc., 48 AD3d 225, 226 [2008]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). The fact that defendants are New York residents weighs against forum non conveniens dismissal (see e.g. Anagnostou, 204 AD2d at 62). Even if some documents will have to be translated from French into English, that does not require dismissal (see e.g. American BankNote Corp. v Daniele, 45 AD3d 338, 340 [2007]).

5015

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

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

Dimitriadis v Visiting Nurse Serv. of N.Y., 2011 NY Slip Op 04410 (App. Div., 2nd 2011)

A motion to vacate a default is addressed to the sound discretion of the Supreme Court (see Gerdes v Canales, 74 AD3d 1017; Scala v 4020 Jerusalem Owners, Inc., 72 AD3d 926, 927; Matter of Lee v Morgan, 67 AD3d 681, 682; Holt Constr. Corp. v J & R Music World, 294 AD2d 540). To obtain relief from a default pursuant to CPLR 5015(a)(1), the moving defendant must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see Felsen v Stop & Shop Supermarket Co., LLC,AD3d, 2011 NY Slip Op 02840 [2d Dept 2011]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695, 696; Farrah v Pinos, 78 AD3d 1115; Francis v Long Is. Coll. Hosp., 45 AD3d 529, 530). Other factors which the court should consider include whether the default prejudiced the opposing party, whether it was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible (see U.S. Bank, N.A. v Dick, 67 AD3d 900, 902; Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 832-833; Moore v Day, 55 AD3d 803, 804).

Contrary to the plaintiffs' contentions, the Supreme Court providently exercised its discretion in granting the defendant's motion to vacate its default. The defendant established a reasonable excuse for the default, and the affidavit of its expert demonstrated the existence of a potentially meritorious defense. Furthermore, the record does not indicate that the plaintiffs were prejudiced by the default or that the default was willful or part of a pattern of neglect, and the vacatur of the default advances the public policy of resolving actions on their merits (see e.g. Dorio v County of Suffolk, 58 AD3d 594, 595; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 673; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522, 523).

Assael v 15 Broad St., LLC, 2011 NY Slip Op 03984 (App. DIv., 2nd 2011)

Upon the plaintiff's appeal, in a decision and order dated March 16, 2010, this Court determined that the defendant's motion to vacate the default judgment should have been denied (see Assael v 15 Broad St., LLC, 71 AD3d 802). Following that appeal, the plaintiff sought to collect the proceeds of the subject bond. The defendant moved, inter alia, to discharge the subject bond, arguing that it had been issued as a condition of vacating the default judgment. The Supreme Court, among other things, granted that branch of the defendant's motion which was to discharge the subject bond. We affirm the order insofar as appealed from.

"A court which renders a judgment or order may relieve a party from it upon such terms as may be just'(CPLR 5015[a]), including the imposition of a bond or undertaking" (Doris v Lewis, 76 AD3d 536, 537; see Yadid, LLC v GCW Bell Corp., 48 AD3d 799, 800; Testwell Craig Labs. v Charles Assoc., 264 AD2d 836, 837). Here, the Supreme Court directed the defendant to post a bond "as a condition of vacatur" of the default judgment. However, upon this Court's decision and order dated March 16, 2010, determining that the defendant's motion to vacate the aforementioned default judgment should have been denied, the parties were, in effect, returned to the status quo ante, namely, that prior to the defendant's motion to vacate its default. Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to discharge the subject bond.

Ogunmoyin v 1515 Broadway Fee Owner, LLC, 2011 NY Slip Op 05469 (App. Div., 2nd 2011)

While law office failure can be accepted as a reasonable excuse in the exercise of a court's sound discretion, the movant must submit supporting facts to explain and justify the default, and mere neglect is not accepted as a reasonable excuse (see Morrison v Rosenberg, 278 AD2d 392, 392; Cole-Hatchard v Grand Union, 270 AD2d 447, 447; De Vito v Marine Midland Bank, 100 AD2d 530, 531).

Here, the plaintiff's proffered excuse of law office failure was vague and unsubstantiated and, thus, did not constitute a reasonable excuse for the default (see Knowles v Schaeffer, 70 AD3d 897, 898; Chechen v Spencer, 68 AD3d 801, 802; Murray v New York City Health & Hosps. Corp., 52 AD3d 792, 793; St. Luke's Roosevelt Hosp. v Blue Ridge Ins. Co., 21 AD3d 946, 947). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to vacate so much of the order dated November 13, 2009, as was entered upon her default in opposing the defendants' separate motions for summary judgment dismissing the complaint (see Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904; Antoine v Bee, 26 AD3d 306; Matter of Hye-Young Chon v Country-Wide Ins. Co., 22 AD3d 849).

Tribeca Lending Corp. v Bartlett, 2011 NY Slip Op 03896 (App. DIv., 1st 2011)

To the extent that defendant's motion to vacate can be construed as based on lack of jurisdiction, pursuant to CPLR 5015(a)(4), the motion fails because defendant formally appeared in this action in June 2007 when he served an answer (see CPLR 320). The fact that an order was entered in January 2008
striking his answer does not vitiate defendant's formal appearance or divest the court of personal jurisdiction over him.

Stasiak v Forlenza, 2011 NY Slip Op 04448 (App. Div., 2nd 2011

The order dated January 12, 2009, granting the wife's unopposed motion, in effect, for summary judgment on the complaint, was rendered at a time when the proceedings were stayed pursuant to both the order dated January 8, 2009, and CPLR 321(c) (see Moray v Koven & Krause, Esqs., 15 NY3d 384, 388-390; Albert v Albert, 309 AD2d 884, 886; Chavoustie v Shaad, 133 AD2d 532). Thus, the Supreme Court erred in issuing the judgment entered March 2, 2009, upon the order dated January 12, 2009. Accordingly, the Supreme Court should have granted that branch of the husband's motion which was to vacate the judgment entered on March 2, 2009, pursuant to CPLR 5015(a) in the interests of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; Wade v Village of Whitehall, 46 AD3d 1302, 1303; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d 629, 630; Lane v Lane, 175 AD2d 103, 105).

The Supreme Court also erred in issuing the judgment entered July 8, 2009. At the time of the inquest, the wife had already been granted all of the relief she requested in the complaint, and the husband had no notice that the wife would be seeking an additional award far greater than that sought in the complaint. Moreover, the husband had no representation at the inquest, and did not ask any questions or present any evidence. Based on the wife's testimony that she was owed a particular amount, the Supreme Court awarded her all of the sums that could potentially become due over the 10-year period following the date of the separation agreement. Because the separation agreement did not contain an acceleration clause, the wife was not entitled to these sums at time she made the request (see Long Is. R.R. Co. v Northville Indus. Corp., 41 NY2d 455, 466; McCready v Lindenborn, 172 NY 400, 408; Runfola v Cavagnaro, 78 AD3d 1035; Zarembka v Zarembka, 81 AD2d 742; Gutman v Gutman, 51 AD2d 535, 536). Further, the amount awarded in the judgment entered July 8, 2009, was based on the assumption that the husband would be required to pay the maximum $1,000 per month for the wife's health insurance premiums and $350 per month for the wife's cell phone expenses, while the evidence the wife submitted in support of her earlier motion, in effect, for summary judgment on the complaint showed that her actual monthly health insurance and cell phone expenses were usually substantially less than these amounts. Accordingly, the Supreme Court should have granted that branch of the husband's motion which was to vacate the judgment entered July 8, 2009, pursuant to CPLR 5015(a) in the interests of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d at 68; Wade v Village of Whitehall, 46 AD3d at 1303; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d at 630; Lane v Lane, 175 AD2d at 105).

 

Rampersant v Nationwide Mut. Fire Ins. Co., 2010 NY Slip Op 02530 (App. Div., 2nd, 2010)

The defendant moved pursuant to 22 NYCRR 202.21(e), inter alia, to vacate the note of issue, contending that the plaintiff failed to comply with, among other things, certain demands for bank and credit card statements and authorizations for cellular phone records for the years 2005 and 2006. By order dated March 6, 2009, the Supreme Court granted the defendant's motion, inter alia, to vacate the note of issue only to the extent of directing the plaintiff to provide authorizations for the disclosure of his Wachovia Bank statements, credit card statements, and cellular phone records for the time period between January 1, 2006, and August 2006. The defendant subsequently moved, inter alia, to modify the order dated March 6, 2009, to extend the time period of disclosure to include August 1, 2005, through December 31, 2005. In support thereof, the defendant submitted the plaintiff's application for automobile insurance dated August 7, 2005, to demonstrate that the requested discovery was material and necessary to the defense of this action. The court denied that branch of the defendant's motion which was to modify the prior order.

The Supreme Court providently exercised its discretion in declining to vacate the note of issue, since it directed discovery to be completed by a date certain (see Joseph v Propst, 306 AD2d 246; Matter of Long Is. Light. Co. v Assessor of Town of Brookhaven, 122 AD2d 794, 795).

However, that branch of the defendant's motion which was to modify the order dated March 6, 2009, to extend the time period of disclosure to include August 1, 2005, through December 31, 2005, should have been granted (see CPLR 5015[a][4]). By submitting the plaintiff's application for insurance dated August 7, 2005, the defendant demonstrated that the disclosure sought for the time period between August 1, 2005, and December 31, 2005, was material and necessary to the defense of this action (see CPLR 3101[a]; Insurance Law § 3105[a]; Cain v United Ins. Co., 232 SC 397, 401, 102 SE2d 360; Barkan v New York Schools Ins. Reciprocal, 65 AD3d 1061, 1064; Tannenbaum v Provident Mut. Life Ins. Co. of Phila., 53 AD2d 86 affd 41 NY2d 1087).

An expert update

Jean v New York City Tr. Auth., 2011 NY Slip Op 05455 (App. Div., 2nd 2011)

The defendants failed to establish, prima facie, that the injured plaintiff did not sustain a serious injury under the significant limitation of use category of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted, among other things, an affirmed report of Dr. Alan J. Zimmerman, their examining orthopedic surgeon, who found range-of-motion restrictions in the injured plaintiff's left shoulder and documented the less-than-normal findings in the numeric values he gave for each specific range of motion. However, in the conclusion of his report, Dr. Zimmerman failed to even address these losses of range of motion to the injured plaintiff's left shoulder. Moreover, his opinions that the left shoulder surgery treated a "non-causally related condition," that "[a] bursa is a degenerative [condition] and not causally related," that "[i]mpingement is a developmental condition, not a traumatic condition which was pre-existing and not causally related," and that "[a]ll of the cervical [magnetic resonance imaging] findings are degenerative, pre-existing and not [causally] related," are without probative value, as he failed to explain or substantiate, with objective medical evidence, the basis of his conclusions (see Reitz v Seagate Trucking, Inc., 71 AD3d 975; Ortiz v S & A Taxi Corp., 68 AD3d 734; Powell v Prego, 59 AD3d 417). Since the defendants failed to meet their prima facie burden, we need not consider the sufficiency of the papers submitted by the plaintiffs in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Houck v Simoes, 2011 NY Slip Op 05452 (App. Div. 2nd, 2011)

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed to show that her "expert" Anthony Mellusi was qualified to provide expert evidence in this case (see generally Riccio v NHT Owners, LLC, 79 AD3d 998, 1000; de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517-518; Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296). In any event, Mellusi's opinion based upon his inspection of the staircase more than a year and a half after the accident was insufficient to raise a triable issue of fact (see Lal v Ching Po Ng, 33 AD3d 668, 668-669). Mellusi's opinion based upon his review of the photographs that the plaintiff took four days after her accident was conclusory and insufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557; Mastroianni v State of New York, 35 AD3d 674, 675). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

The Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to renew her opposition to the defendant's motion for summary judgment, since she did not submit evidence which would change the prior determination (see CPLR 2221[e][2]).

Hoberg v Shree Granesh, LLC, 2011 NY Slip Op 05451 (App. DIv., 2nd 2011)

The Supreme Court did not improvidently exercise its discretion in refusing to preclude the plaintiff's expert witness from testifying that the failure to equip the stairway in the motel lobby with handrails violated Multiple Residence Law § 132. Although the plaintiff's expert witness disclosure statement did not specify the statutory provision requiring the lobby stairway to be equipped with handrails, it was sufficient to apprise the defendant of the subject matter of the expert's proposed testimony, and was neither "so inadequate or inconsistent with the expert's testimony as to have been misleading, or to have resulted in prejudice or surprise" (Gagliardotto v Huntington Hosp., 25 AD3d 758, 759; see CPLR 3101[d][1][i]; Rabinowitz v Elimian, 55 AD3d 813, 814; Popkave v Ramapo Radiology Assoc., P.C., 44 AD3d 920, 921). There is also no indication that the plaintiff's delay in retaining the expert and serving the expert witness notice was willful or intentional, or that the defendant was prejudiced as a result of the delay (see Rowan v Cross Country Ski & Skate, Inc., 42 AD3d 563, 564; Lanoce v Kempton, 8 AD3d 449, 451; Young v Long Is. Univ., 297 AD2d 320). Moreover, the defendant did not show that it was prejudiced by the fact that the plaintiff's supplemental bill of particulars erroneously alleged a violation of Multiple Dwelling Law § 52(1) which does not apply to the premises, since both that provision and the applicable provision, Multiple Residence Law § 132, identically require stairs more than three feet and eight inches in width to be provided with handrails on each side.

The scope and manner of cross examination "are left to the sound discretion of the trial court" (Salm v Moses, 13 NY3d 816, 817; see Bernstein v Bodean, 53 NY2d 520, 529), and here the Supreme Court did not improvidently exercise its discretion in limiting the defendant's cross-examination of the plaintiff's expert witness (see Matter of Simone D., 9 NY3d 828, 829; Forte v Standard Fusee Corp., 204 AD2d 600, 600).

Contrary to the defendant's contention, the Supreme Court properly permitted the plaintiff to introduce evidence during the damages phase of the trial concerning the effect her injuries had on her activities and personality. This evidence was relevant to loss of enjoyment of life, which is a factor to be considered by the jury in assessing damages for pain and suffering (see Nussbaum v Gibstein, 73 NY2d 912, 914; McDougald v Garber, 73 NY2d 246, 255-256). In addition, the photograph of the plaintiff recovering from her injuries in the hospital was not inflammatory, and was properly admitted to help the jury evaluate the medical testimony and assess the plaintiff's pain and suffering (see Heath v Makita Corp., 255 AD2d 419, 420; Salazar v Fries & Assoc., 251 AD2d 210, 211; Colon v New York City Hous. Auth., 248 AD2d 254, 255; Axelrod v Rosenbaum, 205 AD2d 722, 723).

Grisales v City of New York, 2011 NY Slip Op 05450 (App. Div., 2nd 2011)

The municipal defendants, in support of their cross motion for summary judgment dismissing the complaint insofar as asserted against them, failed to meet their prima facie burden of showing that the plaintiffs 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). As to the plaintiffs' decedent, Angelica Cuadros, the municipal defendants, in support of their cross motion, relied on, inter alia, the affirmed medical reports of Dr. Edward M. Adler and Dr. Amy M. Weiss-Citrome. Dr. Adler, an orthopedist, examined Cuadros on September 4, 2008. On that date, while he set forth findings with respect to her right knee range of motion, he failed to compare those findings to what was normal (see Frasca-Nathans v Nugent, 78 AD3d 651; Chiara v Dernago, 70 AD3d 746; Page v Belmonte, 45 AD3d 825; Malave v Basikov, 45 AD3d 539; Fleury v Benitez, 44 AD3d 996; Nociforo v Penna, 42 AD3d 514). Moreover, in the report of Dr. Weiss-Citrome, who examined Cuadros on September 6, 2006, seven months post-accident, she noted significant limitations in Cuadros' cervical and lumbar spine (see Torres v Torrano, 79 AD3d 1124; Mondevil v Kumar, 74 AD3d 1295; Smith v Hartman, 73 AD3d 736; Quiceno v Mendoza, 72 AD3d 669; Giacomaro v Wilson, 58 AD3d 802, 803; McGregor v Avellaneda, 50 AD3d 749, 749-750; Wright v AAA Constr. Servs., Inc., 49 AD3d 531; Scotti v Boutureira, 8 AD3d 652). Furthermore, when Dr. Weiss-Citrome examined Cuadros' knees, she merely concluded that the examination revealed "functional" range of motion, yet failed to set forth the objective testing she performed to arrive at that conclusion (see Karvay v Gueli, 77 AD3d 625; Chiara v Dernago, 70 AD3d 746; Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977; Smith v Quicci, 62 AD3d 858; Giammalva v Winters, 59 AD3d 595).

As to the plaintiff Mariana Grisales (hereinafter Grisales), the municipal defendants, in support of their cross motion for summary judgment, relied upon, inter alia, the affirmed medical report of Dr. Adler, who examined her on September 4, 2008. While he made certain findings with respect to the range of motion of the cervical region of her spine, he failed to compare all of those findings to what was normal (see Rhodes v Stoddard, 79 AD3d 997; Frasca-Nathans v Nugent, 78 AD3d at 651; Chiara v Dernago, 70 AD3d at 746; Page v Belmonte, 45 AD3d at 826).

Shapiro v Gurwin Jewish Geriatric Nursing & Rehabilitation Ctr., 2011 NY Slip Op 04655 (App. Div., 2nd 2011)

The expert affidavit submitted by the plaintiff, which relied upon facts contradicted or unsupported by the record, was speculative and conclusory as to the negligence and wrongful death causes of action and did not raise a triable issue of material fact as to any of the causes of action alleged in the complaint (see Romano v Stanley, 90 NY2d 444, 451-452; Kane v Ausubel, 44 AD3d 717, 717-718; Rodriguez v Montefiore Med. Ctr., 28 AD3d 357). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

McLoughlin v Suffolk Obstetrics & Gynecology, LLP, 2011 NY Slip Op 05464 (App. DIv., 2nd 2011)

The defendants Suffolk Obstetrics and Gynecology, LLP, Paul Lograno, and St. Charles Hospital and Rehabilitation Center (hereinafter collectively the defendants), demonstrated their prima facie entitlement to judgment as a matter of law by submitting an expert affirmation, as well as the examinations before trial of the plaintiff's treating physicians, which establish that there was no departure from good and accepted medical practice with respect to the plaintiff's post-operative treatment (see Stukas v Streiter, 83 AD3d 18; Breland v Jamaica Hosp. Med. Ctr., 49 AD3d 789; DiMitri v Monsouri, 302 AD2d 420). The plaintiff's submissions in opposition to the motion, including the conclusory affirmation of the plaintiff's expert, were insufficient to raise a triable issue of fact (see Deutsch v Chaglassian, 71 AD3d 718, 719; Dunn v Khan, 62 AD3d 828, 829; DiMitri v Monsouri, 302 AD2d at 421).

Arroyo v Morris, 2011 NY Slip Op 05624 (App. Div ., 1st 2011)

In opposition, plaintiff failed to refute defendants' evidence of a preexisting degenerative condition of the lumbar spine or a preexisting chronic condition of the left knee, and therefore failed to raise an inference that injury to either the spine or the knee was caused by the accident (see id.; see also Jimenez v Rojas, 26 AD3d 256 [2006]; Diaz v Anasco, 38 AD3d 295 [2007]). Further, none of plaintiff's doctors made any reference to either the degenerative or the chronic condition; without an explanation for ruling out these conditions as the cause of plaintiff's injuries, the doctors' opinions that the injuries were caused by the accident are speculative (see Valentin, 59 AD3d at 186). As there is no objective medical evidence that plaintiff's injuries were caused by the accident, plaintiff's statement that he was out of work for nine months is insufficient to establish his 90/180-day claim (see Linton v Nawaz, 62 AD3d 434, 443