Interesting to Me (CPLR 3215; 4518; 3121; 602; 3018)

Of all the decisions that came out this past week, these are the ones that I read and though, "hey, that's interesting."

New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (App. Div., 2nd, 2010)

The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff's counsel, and an affidavit of the plaintiff's investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff's investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]). Accordingly, entry of a default judgment against these defendants was properly denied on the papers before the Supreme Court.

Ok, this one is a little older.  I accidentally put it with the others.  But since it's already here, I might as well keep it.

Tucker v Bay Shore Stor. Warehouse, Inc., 2010 NY Slip Op 00134 (App. Div., 2nd, 2010)

Contrary to the defendants' contentions, the Supreme Court did not improvidently exercise its discretion in denying that branch of their motion which was to compel the plaintiff to undergo a second independent medical examination. "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Mattocks v White Motor Corp., 258 AD2d 628, 629 [internal quotation marks and citations omitted]; see Kaplan v Herbstein, 175 AD2d 200). While CPLR 3121 does not limit the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it (see Young v Kalow, 214 AD2d 559; see also Huggins v New York City Tr. Auth., 225 AD2d 732). Here, the defendants failed to show that a further physical examination of the plaintiff was required. While we strongly disapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questions relating to her relevant past medical history, there was no indication by the defendants' examining physician that his prior examination was hindered, or that he required additional information.

Gladstein v Martorella, 2010 NY Slip Op 01732 (App. Div., 1st, 2010)

When parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. Extrinsic and parol evidence are not admissible to create an ambiguity in a written agreement which is complete, clear and unambiguous on its face (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

The agreement herein is unambiguous on its face. Both sale and lease contracts may be utilized in meeting the 75% requirement. "The best evidence of what parties to a written agreement intend is what they say in their writing" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks and citation omitted]). If the parties intended to exclude lease contracts from consideration, they made a mistake in the agreement. "An omission or mistake in a contract does not constitute an ambiguity" (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks and citation omitted]).

Progressive Northeastern Ins. Co. v North State Autobahn, Inc., 2010 NY Slip Op 01779 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07. Inasmuch as the two actions did not involve common questions of law or fact (see CPLR 602[a]), a joint trial was not warranted (see Beerman v Morhaim, 17 AD3d 302, 303).

At the close of the plaintiff's case, which arises out of the defendants' repair of a motor vehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of law on the ground that the plaintiff had failed to establish a prima facie case (see CPLR 4401). The Supreme Court granted the motion on a ground not argued by the defendants, namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehicle without asserting that the payment was, in some [*2]manner, "under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Uniform Commercial Code § 1-207). In granting the motion on that ground, the Supreme Court erred in two respects. First, accord and satisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042; see also Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908). The defendants did not plead accord and satisfaction as an affirmative defense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco Bank N.Y. v Cohn, 215 AD2d 840, 841; cf. Rienzi v Rienzi, 23 AD3d 450). Second, the doctrine of accord and satisfaction is not applicable because it contemplates full knowledge of the facts on the part of both parties who, in effect, enter into a new contract to expeditiously settle a contract dispute (see Horn Waterproofing Corp v Bushwick Iron & Steel Co., 66 NY2d 321, 325). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff's claim is that it was without such knowledge because of the defendants' alleged misrepresentation of material facts. Thus, a new trial is warranted.

We note that, upon retrial, the plaintiff should not be limited to damages in the sum of $2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of the defendant North State Autobahn, Inc., d/b/a North State Custom Auto, but rather to the amount sought in the complaint.

Another older one.

Simmons v New York City Health & Hosps.
Corp., 2010 NY Slip Op 01692 (App. Div., 1st, 2010)

The motion court, by declining to grant defendant's motion to dismiss the complaint and ordering discovery, limited to plaintiff's assertion of the insanity toll, necessarily rejected defendant's res judicata defense. Thus, the order at issue, at least to the extent that it denied defendant's motion to dismiss on grounds of res judicata is appealable insofar as it affects a substantial right (see Fellner v Morimoto, 52 AD3d 352, 353 [2008]; CPLR 5701[a][2][v]).

However, contrary to the lower court's implicit conclusion the instant action is in fact barred by res judicata. Plaintiff's prior action was against a doctor employed by defendant, arose from the same course of treatment alleged in the instant action, and was dismissed on statute of limitations grounds. While defendant was not a party to the prior action, as defendant doctor's employer, required to indemnify defendant doctor in the prior action, it was in privy with defendant doctor (Beuchel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; Prospect Owners Corp. v Tudor Realty Servs., 260 AD3d 299 [1999]), the real party in interest in that action (Ebert v New York City Health and Hosp. Corp., 82 NY2d 863, 866-867 [1993]), and the abbreviated statute of limitations applicable to defendant was thus applied to him (see International Shared Servs. v County of Nassau, 222 AD2d 407, 408 [1995]; Urraro v Green, 106 AD2d 567 [1984]). Plaintiff cannot avoid res judicata by varying facts, changing his causes of action and omitting references to the previously named doctor (see Reilly v Reed, 45 NY2d 24, 28-30 [1978]; Marinelli v Assocs. v Helmsley Noyes Co., 265 AD2d 1 [2000]).

The bold, that I will eventually use, will be mine.

Timely, but Improper: CPLR § 3012(d)

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

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

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

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

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

The bold is mine.

3102 Pre-Action Discovery

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

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

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

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

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

The bold is mine.

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

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

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

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

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

***

ROMÁN, J. (dissenting)

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

***

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

***

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

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

CPLR R. 3212 Round Up

I've let these sit for too long.  These need to be posted, along with the 3211 cases, so that I can get to some of the more esoteric (probably not the right word) sections and rules.  Besides, I finally got a new computer, one that doesn't crash.  So I might as well put it to use.

CPLR R. 3212 Motion for summary judgment

CPLR R. 3214 Motions
heard by judge supervising disclosure; stay of disclosure

(b) Stay of disclosure: Service of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion unless the court orders otherwise. If the motion is based solely on the defense that the summons and complaint, summons with notice, or notice of petition and petition was not properly served, disclosure shall not be stayed unless the court orders otherwise.

Mazzocchi Wrecking Inc. v East 115th St. Realty Corp., 2010 NY Slip Op 01425 (App. Div., 1st, 2010)

Plaintiff's motion, based solely on the claim for breach of contract, was unsupported by an affidavit of a person with personal knowledge. The movant thus failed to meet its prima facie burden of proof, rendering the motion insufficient and lacking in probative value (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 31-32 [1979], affd 49 NY2d 924 [1980]).

Gonzalez v Nutech Auto Sales, 2010 NY Slip Op 00469 (App. Div., 2nd, 2010)

Under the circumstances of this case, since the motion was premature as no discovery had yet taken place (see CPLR 3212[f]; Harvey v Nealis, 61 AD3d 935; Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753), the Supreme Court erred in determining the motion on the merits.

Sutter v Wakefern Food Corp., 2010 NY Slip Op 00506 (App. Div., 2nd, 2010)

The plaintiff commenced this action against the defendant in 2002. In an amended order dated October 6, 2005, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint. In an order dated August 18, 2006, the Supreme Court denied the defendant's motion for leave to renew, on both a "procedural and substantive basis." In July 2008 the defendant again moved for summary judgment dismissing the complaint. The plaintiff then separately moved for the admission, pro hac vice, of Florida attorney Antoinette R. Appel to appear on her behalf as co-counsel in this action. The Supreme Court granted the defendant's motion and, in effect, denied the plaintiff's motion as academic.

Generally, successive motions for summary judgment should not be entertained, absent a showing of newly-discovered evidence or other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Crane v JAB Realty, LLC, 48 AD3d 504; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599). Here, the Supreme Court should not have [*2]entertained the defendant's latest motion for summary judgment dismissing the complaint since the defendant did not submit any newly-discovered evidence, or present other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Selletti v Liotti, 45 AD3d 669; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599).

Marcantonio v Picozzi, 2010 NY Slip Op 00822 (App. Div., 2nd, 2010)

Accordingly, the Supreme Court properly dismissed the complaint insofar as asserted against Picozzi and the law firm, thus rendering academic that branch of the plaintiffs' cross motion which was to compel those defendants to answer interrogatories. As to the defendants Project Real Estate, Inc., and John McHugh, their response to interrogatories was properly stayed pending determination of their motion for summary judgment (see CPLR 3214[b]).

Williams v D & J School Bus, Inc., 2010 NY Slip Op 00141 (App. Div., 2nd, 2010)

In opposition, the City defendants failed to raise a triable issue of fact as to whether the third-party defendants had any involvement in this matter, merely arguing that their motion was premature, and that a deposition of Scialpi was necessary. While determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615; see Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). A party's mere hope that further discovery will reveal the existence of a triable issue of fact is insufficient to delay determination of the motion (see Wyllie v District Attorney of County of Kings, 2 AD3d at 717; Weltmann v RWP Group, 232 AD2d 550). Here, as the Supreme Court correctly held, the City defendants failed to provide an evidentiary basis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d 619, 620).

NYCRR 202.27; 22 NYCRR 202.21

22 NYCRR 202.27 Defaults

22 NYCRR 202.21 Note of issue and certificate of readiness

Donnelly v Treeline Cos., 66 AD3d 563 (App. Div., 1st, 2009)

A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) is governed by CPLR 5015. Such a motion must be made within one year of service of a copy of the dismissal order with notice of entry, and be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action. Where the dismissal order has never been served with notice of entry, there is no time limit on making a motion to vacate the dismissal, and any alleged prejudice caused by postdismissal delay, short of laches, is not a consideration (Acevedo v Navarro, 22 AD3d 391 [2005]).

Plaintiff demonstrates both a reasonable excuse and the existence of a meritorious cause of action. The fact that none of the parties appeared for the scheduled court conference in July 2002 indicates that plaintiff's default was reasonable and likely attributable to the court's failure [*2]to notify everyone about the conference, whose date is not found in any prior conference order. Plaintiff's former attorney averred that his office was never notified of the conference or informed of the dismissal. Lack of receipt of notice can be a valid excuse for failure to appear at a conference (see Latha Rest. Corp. v Tower Ins. Co., 285 AD2d 437 [2001]).

Plaintiff has also established a meritorious cause of action. Indeed, on a prior appeal in 2004 (13 AD3d 143 [2004]), we affirmed the existence of numerous triable issues of fact concerning the liability of defendants Treeline and Commercial, and also of third-party defendant Republic.

Defendants contend that plaintiff's delay in moving to vacate the section 202.27 dismissal amounted to laches. While defendants were not apparently prejudiced in the two years immediately after the dismissal, during which they continued actively litigating, the case did thereafter remain inactive for a three-year period until plaintiff's motion to vacate the dismissal in 2007. This delay, though lengthy, was not unreasonable. In any event, defendants have not alleged prejudice from this delay, other than in conclusory fashion.

Figueroa v Sanchez, 2009 NY Slip Op 08881 (App. Div., 1st, 2009)

Due to his incarceration, plaintiff defaulted by failing to appear at a preliminary conference (22 NYCRR 202.27). The only remedy for plaintiff's default in these circumstances is not an appeal, but rather a motion in Supreme Court to vacate the default (see Campos v New York City Health & Hosps. Corp., 307 AD2d 785, 786 [2003]). In the present posture of the case, there is no appealable order for this Court to review. Finally, we note that plaintiff claims that he made numerous attempts to communicate with the court about his appearances that were not addressed.

Gaskin v Ilowitz, 2010 NY Slip Op 00097 (App. Div., 2nd, 2010)

The plaintiff's certificate of readiness incorrectly stated that the bill of particulars, physical examinations, exchange of medical reports, and any discovery proceedings known to be necessary were waived. In addition, it falsely declared that preliminary proceedings had been completed and that the case was ready for trial. Because of these misstatements of material facts, that branch of the defendant's motion which was to vacate the note of issue was properly granted (Brown v Astoria Fed. Sav., 51 AD3d 961, 962; see 22 NYCRR 202.21[e]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497; Spilky v TRW, Inc., 225 AD2d 539, 540).

Ferraro v North Babylon Union Free School Dist., 2010 NY Slip Op 00095 (App. Div., 2nd, 2010)

A motion for vacatur of the note of issue and certificate of readiness made more than 20 days after their filing will be granted only where "a material fact in the certificate of readiness is incorrect" or upon "good cause shown" (22 NYCRR 202.21[e]). To satisfy the requirement of "good cause," the party seeking vacatur must "demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice" (White v Mazella-White, 60 AD3d 1047, 1049, quoting Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794). Here, the plaintiffs neither proffered an excuse for their delay (id. at 794), nor "demonstrate[d] . . . unusual or unanticipated circumstances" (White v Mazella-White, 60 AD3d at 1049). Accordingly, the court properly denied that branch of the plaintiffs' cross motion which was to vacate the note of issue and certificate of readiness.

Singh v City of New York, 2009 NY Slip Op 09646 (App. Div., 2nd, 2009)

[T]hat branch of the defendants' motion which, in effect, was to compel the plaintiffs to respond to additional discovery demands regarding the immigration status of the plaintiff Harminder Singh is denied. While the Supreme Court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing which require additional pretrial proceedings to prevent substantial prejudice (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Futersak v Brinen, 265 AD2d 452), here, the defendants failed to establish any such unusual or unanticipated circumstances that would warrant the additional post-note-of-issue discovery they sought (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135; Futersak v Brinen, 265 AD2d 452). The defendants also failed to establish that the denial of their request would cause them actual, substantial prejudice (see Audiovox Corp. v Benyamini, 265 AD2d at 139).

The bold is mine.

Today in the First Department (22 NYCRR 202.2, CPLR R. 3211, CPLR R. 3212, CPLR § 306-b, CPLR § 3121, SOL)

Several decisions popped out of the Appellate Division, First Department,  today.  In a break from my normal posting style, where I try to split posts between sections and rules, I'm going to post the few decisions that I found interesting.

Ocasio-Gary v Lawrence Hosp., 2010 NY Slip Op 00003 (App. Div., 1st, 2009)

Even had St. Barnabas met its initial burden, plaintiff's expert's submission raises triable issues of fact regarding the hospital's negligence (see DaRonco v White Plains Hosp. Ctr., 215 AD2d 339 [1995]). The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion. Venue should be retained in Bronx County. The only ground for the motion to change venue was the dismissal of the complaint against St. Barnabas, and the complaint has been reinstated.

The motion to vacate plaintiff's note of issue, served more than 20 days after service of that note, was properly denied as untimely (see 22 NYCRR 202.21[e]), "no showing of special circumstances or adequate reason for the delay having been offered" (Arnold v New York City Hous. Auth., 282 AD2d 378 [2001]). Nor did the court err in finding that defendant Orin failed to demonstrate good cause for an extension of time in which to file his motion for summary judgment (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Johnson v Concourse Vil., Inc., 2010 NY Slip Op 00010 (App. Div., 1st, 2009)

Although plaintiff's counsel served her pleadings just one day after the applicable 120-day service period expired (see CPLR 306-b), and counsel offered proof that he attempted to arrange for service with eight days remaining out of the 120-day period, he nonetheless failed to show diligence in his efforts to effect service, particularly as the three-year statute of limitations (CPLR 214[5]) had already expired, and he did not follow up with the process server regarding completion of service until after the 120-day service period had expired. There was no evidence to indicate that the corporate defendants could not be located, or that they could not be readily served through the Secretary of State. Furthermore, counsel waited until after defendants moved to dismiss before he cross-moved for an extension of the time to serve some several months later. Such evidence of lack of diligence undermines plaintiff's "good cause" argument in support of her extension request (see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).

Nor is a grant of an extension to serve the pleadings warranted in the interest of justice. The circumstances presented, including that the statute of limitations expired, plaintiff's lack of diligence in prosecuting this action, the lack of probative evidence offered as to the claim's merit, the vague allegations of injury, the lack of notice given of the claim for more than three years and three months, the prejudice to defendants and the several month delay in moving for an extension of the time to serve, demonstrate that the dismissal of this action was appropriate (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Posada v Pelaez, 37 AD3d 168 [2007]; compare de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).

One day late.

Suss v New York Media, Inc., 2010 NY Slip Op 00011 (App. Div., 1st, 2009)

We reject plaintiff's argument that such evidence fails to show, prima facie, that the issue first was published on April 29. The affidavits submitted by defendants were made with personal knowledge of the issue's distribution date; the distributor's affidavit was the proper vehicle for the submission of photographs taken by him and his staff (see H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98, 98 [1992]); and the photographs, as enhanced and highlighted in defendants' reply, clearly depict what they are claimed to depict. In opposition, plaintiff failed to submit any evidence of a later publication.

We also reject plaintiff's argument that unless the court gives CPLR 3211(c) notice of its intention to do so, it may not consider nondocumentary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Alverio v New York Eye & [*2]Ear Infirmary, 123 AD2d 568 [1986]; Lim v Choices, Inc., 60 AD3d 739 [2009]).

Welter v Feigenbaum, 2010 NY Slip Op 00012 (App. Div., 1st, 2009)

A plaintiff, in an action for negligent transmittal of genital herpes simplex II, may demand that the defendant submit to a blood test to determine if the latter indeed has the virus (see CPLR 3121). Since the test was ordered in conjunction with the litigation, it is not subject to the physician-patient privilege (see Connors, McKinney's CPLR Practice Commentary C3121:2). Even were the privilege to apply, defendant waived it by asserting the affirmative defense that he was asymptomatic (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287-288 [1989]). Defendant's effort to limit the scope of discovery has simply focused the issue on whether or not he has the virus. This issue is relevant to — and potentially dispositive of — the action. If the test is negative, the case will be subject to dismissal. If, on the other hand, it is positive, defendant will have an opportunity to prove his affirmative defenses that he did not have the virus in 2002, or was unaware that he had it or was asymptomatic at the time of alleged transmittal to plaintiff.

All concur except Andrias and McGuire, JJ., who concur in a separate memorandum by McGuire, J. as follows:

McGUIRE, J. (concurring)

We write separately to emphasize that we express no view on the issue of whether, if the test is positive, it is adm
issible at trial (see People v Scarola, 71 NY2d 769, 777 [1988] ["(e)ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the [*2]exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury"]).

The herpes case.

CPLR R. 3216 Must Contain Certain Language & CC Order Can Have the Same Effect as a 90-day Notice

CPLR R. 3216 Want of prosecution

Itskov v Menorah Home & Hosp. for the Aged & Infirm, 2009 NY Slip Op 08999 (App. Div., 1st, 2009)

Here, the defendant's notice dated November 5, 2007, demanding that the plaintiffs serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiffs that they were "to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand" (CPLR 3216[b][3] [emphasis added]; cf. Johnson v Minskoff & Sons, 287 AD2d 233, 238). Since no proper notice was received by the plaintiffs prior to the defendant's motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering v Stella, 243 AD2d at 624).

Passet v Menorah Nursing Home, Inc., 2009 NY Slip Op 09009 (App. Div., 2nd, 2009)

CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action (see Rose v Aziz, 60 AD3d 925, 926). Since CPLR 3216 is a legislative creation and not part of a court's inherent power (see Cohn v Borchard Affiliations, 25 NY2d 237, 248), the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the action (see Airmont Homes v Town of Ramapo, 69 NY2d 901, 902; Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996, 997; Schuering v Stella, 243 AD2d 623, 624).

Here, the defendants' notice demanding that the plaintiff serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiff that she was "to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand" (CPLR 3216[b][3] [emphasis added]; cf. Johnson v Minskoff & Sons, 287 AD2d 233, 238). Since no proper notice was received by the plaintiff prior to the defendants' motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering v Stella, 243 AD2d at 624).

Shcherbina v Queens Nassau Nursing Home, Inc., 2009 NY Slip Op 07615 (App. Div., 2nd, 2009)

In a compliance conference order dated April 1, 2003, the Supreme Court directed the plaintiff to file a note of issue on or before July 1, 2003, and warned that the action would be dismissed if the plaintiff failed to comply. Counsel for the plaintiff signed the order. This order had the same effect as a 90-day notice pursuant to CPLR 3216 (see Felix v County of Nassau, 52 AD3d 653, 653; Anjum v Karagoz, 48 AD3d 605, 605; Hoffman v Kessler, 28 AD3d 718). The plaintiff failed to comply with this order either by filing a timely note of issue or by moving to extend the period for doing so, and the action was properly dismissed pursuant to CPLR 3216 (see Felix v County of Nassau, 52 AD3d 653, 653-654; Anjum v Karagoz, 48 AD3d 605, 605). Since the plaintiff waited three years to move to vacate the dismissal of the action, the motion was untimely and should have been denied (see Vinikour v Jamaica Hosp., 2 AD3d 518, 519).

The bold is mine.

Compare the last two decisions with A.M. Med., P.C. v State Farm Mut. Ins. Co., 2008 NY Slip Op 28487 (App. Term, 2nd, 2008)

Wow, I just realized that these are all nursing home cases.  Weird.

CPLR R. 5015 Don’t Try This at Home

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

Campbell-Jarvis v Alves, 2009 NY Slip Op 08986 (App. Div., 2nd, 2009)

In order to vacate her default in opposing the defendant's prior motion to dismiss, the plaintiff was required to demonstrate both a reasonable excuse for her default and a meritorious opposition to the motion (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534; Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552). Although the determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394; Roussodimou v Zafiriadis, 238 AD2d 568, 569; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527), and the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), "a pattern of willful default and neglect" should not be excused (Roussodimou v Zafiriadis, 238 AD2d at 569 [internal quotation marks omitted]; see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393; Kolajo v City of New York, 248 AD2d 512; Vierya v Briggs & Stratton Corp., 166 AD2d 645, 645-646; Chery v Anthony, 156 AD2d 414, 417), and the claim of law office failure should be supported by a "detailed and credible" explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479; see Gironda v Katzen, 19 AD3d 644, 645). In this case, the plaintiff's attorney's conclusory, undetailed, and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535; Piton v Cribb, 38 AD3d 741; Matter of ELRAC, Inc. v Holder, 31 AD3d 636). In addition, the plaintiff failed to submit an affidavit of merit. Accordingly, the Supreme Court abused its discretion in granting the plaintiff's motion to vacate an order which granted the defendant's motion to dismiss the action upon her default in opposing the motion.

Now, compare that with

Lamar v City of New York, 2009 NY Slip Op 08974 (App. Div., 1st, 2009)

While the City's generalized assertion of law office failure as the excuse for its delay is not particularly compelling, it constitutes "good cause" for the delay (see Spira v New York City Tr. Auth., 49 AD3d 478 [2008]). No prejudice to plaintiff has been shown (see Cirillo v Macy's, Inc., 61 AD3d 538, 540 [2009]), and New York's public policy strongly favors litigating matters on the merits (see Silverio v City of New York, 266 AD2d 129 [1999]). An affidavit of merit is not required where no default order or judgment has been entered (see Cirillo, supra).

Performance Constr. Corp. v Huntington Bldg., LLC, 2009 NY Slip Op 09012 (App. Div., 2nd, 2009).

The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Corcoran Marble & Monument Co., Inc. (hereinafter Corcoran), and in granting Corcoran's cross motion for leave to serve a late answer (see CPLR 3012[d], 5015[a][1]). Considering the lack of any prejudice to the plaintiff as a result of the relatively short 11-day delay in Corcoran's service of an answer, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently excused Corcoran's de minimis delay in answering the complaint (see Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687, 688). Furthermore, the record reveals that Corcoran was actively engaged in settlement negotiations with the plaintiff's attorney, and that the plaintiff's attorney never mentioned that he would be moving for leave to enter a default judgment (see Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836; Scarlett v McCarthy, 2 AD3d 623; Lehrman v Lake Katonah Club, 295 AD2d 322). [*2]

Moreover, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Tritec Building Co. (hereinafter Tritec). The record reveals that Tritec and the plaintiff entered into a stipulation extending Tritec's time to answer "to and until March 3, 2008." Accordingly, Tritec's service of an answer was timely since the answer was served on March 3, 2008 (see CPLR 320[a]).

The bold is mine.

CPLR § 5225(a)(b)

CPLR § 5225 Payment or delivery of property of judgment debtor
(a) Property in the possession of judgment debtor
(b) Property not in the possession of judgment debtor

Buckeye Retirement Co., LLC, Ltd. v Quattrocchi, 2009 NY Slip Op 08576 (App. Div., 2nd, 2009)

CPLR 5225(a) requires that notice of a motion to compel the turn over of personal property "shall be served on the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested" (CPLR 5225[a]). The plaintiff's affidavit of service revealed that the judgment debtor was served by regular mail, rather than by a method set forth in CPLR 5225(a). The failure to properly serve notice upon the defendant of the plaintiff's motion pursuant to CPLR 5225(a) to compel the defendant to turn over to the Sheriff certain personal property in his possession deprived the court of jurisdiction to entertain the motion (see Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748; Daulat v Helms Bros., Inc., 32 AD3d 410, 411; Golden v Golden, 128 AD2d 672, 673; see also Banco Popular N. Am. v Philian Designs LLC, 48 AD3d 368, 369; Oil City Petroleum Co. v Fabac Realty Corp., 70 AD2d 859, affd on other grounds 50 NY2d 853). Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 5225(a).

Matter of Signature Bank v HSBC Bank USA, N.A., 2009 NY Slip Op 08626 (App. Div., 2nd, 2009)

Faced with the judgment debtor's continuous default in making payments to satisfy the money judgment, the petitioner commenced the instant proceeding pursuant to CPLR 5225(b) against the judgment debtor, her bank, HSBC Bank USA, N.A. (hereinafter HSBC), and the judgment debtor's daughters, who were named on the subject joint bank accounts, inter alia, to direct HSBC to turn over the funds of the joint bank accounts to the petitioner. Both of the judgment debtor's daughters defaulted in answering the petition. The Supreme Court granted that branch of the petition which was to direct HSBC to turn over the funds of those bank accounts to the petitioner. We affirm.

CPLR 5225(b) provides for an expedited special proceeding by a judgment creditor to recover "money or other personal property" belonging to a judgment debtor "against a person in possession or custody of money or other personal property in which the judgment debtor has an interest" in order to satisfy a judgment (Starbare II Partners v Sloan, 216 AD2d 238, 239). The judgment creditor is required to serve the petition upon the judgment debtor in the same manner as a summons in an action or [*2]by registered or certified mail, return receipt requested (see CPLR 5225[b]). Once a court has personal jurisdiction over the judgment debtor and bank, it can order the turn over of "money or other personal property," even property located out of the state (see Gryphon Dom. VI, LLC v APP Intl. Fin. Co. B.V., 41 AD3d 25, 31; Miller v Doniger, 28 AD3d 405; Starbare II Partners v Sloan, 216 AD2d at 239).

Even jointly owned assets are vulnerable to levy by a judgment creditor pursuant to CPLR 5225. "Generally, the deposit of funds into a joint account constitutes prima facie evidence of an intent to create a joint tenancy" (Matter of Richichi, 38 AD3d 558, 559; see Banking Law § 675[b]; Matter of Dubin, 54 AD3d 947, 949). However, at the same time, "the opening of a joint bank account creates a rebuttable presumption that each named tenant is possessed of the whole of the account so as to make the account vulnerable to levy of a money judgment by the judgment creditor of one of the joint tenants" (Tayar v Tayar, 208 AD2d 609, 610; see Viggiano v Viggiano, 136 AD2d 630, 631; Denton v Grumbach, 2 AD2d 420, 422; Banking Law § 675[b]).

"The presumption created by Banking Law § 675 can be rebutted by providing direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account had been opened for convenience only'" (Fragetti v Fragetti, 262 AD2d 527, 527, quoting Wacikowski v Wacikowski, 93 AD2d 885, 885; see Matter of Friedman, 104 AD2d 366, 367, affd 64 NY2d 743; Storozynski v Storozynski, 60 AD3d 754). If the presumption is rebutted, the judgment creditor's levy on the jointly owned bank account is effective only up to the actual interest of the judgment debtor in the account (see Viggiano v Viggiano, 136 AD2d at 631).

The Supreme Court properly directed HSBC to turn over the entirety of the subject joint bank accounts to the petitioner (see LR Credit 10, LLC v Welsh, 17 Misc 3d 1129[A]; Rappaport, Steele & Co., P.C. v JPMorgan Chase Bank, N.A., 13 Misc 3d 1203[A]; Velocity Invs., LLC/Citibank v Astoria Fed. Sav. & Loan, 12 Misc 3d 1184[A]; Ford Motor Credit Co. v Astoria Fed., 189 Misc 2d 475, 477). It is undisputed that neither of the judgment debtor's daughters appeared or answered the proceedings, or in any manner challenged the petition's allegations to claim any portion of the joint bank accounts (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; McClelland v Climax Hosiery Mills, 252 NY 347, 351; Otto v Otto, 150 AD2d 57, 65; Ford Motor Credit Co. v Astoria Fed., 189 Misc 2d at 476). The judgment debtor's mere conclusory assertions are patently insufficient to rebut her ownership of the funds in the bank accounts for purposes of the turnover proceedings (see Tayar v Tayar, 208 AD2d at 610). Under these circumstances, the Supreme Court properly determined that the petitioner was entitled to the turnover of the funds contained in the two joint bank accounts.

To the extent the judgment debtor raises an issue concerning that branch of the petition which was to direct HSBC to turn over the contents of a safe deposit box in the name of the judgment debtor, that issue remains pending and undecided, and, therefore, is not properly before this Court (see Katz v Katz, 68 AD2d 536, 542-543).

The bold is mine.