These Are Not The Droids You’re Looking For (Discovery: CPLR § 3126)

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

Emmitt v City of New York, 2009 NY Slip Op 07331 (App. Div., 1st, 2009)

A party that disobeys court-ordered disclosure is subject to preclusion of relevant portions of its evidence (CPLR 3126). The nature of the sanction lies generally within the broad discretion of the court, and should not be disturbed absent an improvident exercise thereof (Gross v Edmer Sanitary Supply Co., 201 AD2d 390 [1994]). In its answer, defendant raised as an affirmative defense that any and all hazards, defects and dangers were of such an open, obvious and apparent nature that they were or should have been known to plaintiff, thus rendering her injuries attributable to her own culpable conduct. There is no reason to bar defendant from pursuing that defense. However, it was not an improvident exercise of discretion to preclude defendant from offering evidence as to the Con Edison permits. We modify only to clarify that it will be conclusively presumed at trial that defendant created or had notice of the trench involved in the accident. This relief will ameliorate the prejudice plaintiff has suffered as a result of defendant’s failure to timely disclose the Con Ed permits. Defendant’s ability to [*2]defend the suit by attributing the accident to plaintiff’s own lack of due care is not impaired.

Minaya v Duane Reade Intl., Inc., 2009 NY Slip Op 06767 (App. Div., 1st, 2009)

In sanctioning defendant for failing to preserve critical evidence, the motion court appropriately exercised its “broad discretion to provide . . . relief to the party deprived of the lost evidence” (Ortega v City of New York, 9 NY3d 69, 76 [2007]). Defendant failed to preserve a video recording that may have shown the stairway before and during plaintiff’s accident. The unavailability to plaintiff of the video recording may have impaired his ability to establish that defendant possessed the requisite notice of a defective condition on the stairs. Under these circumstances, however, the extreme sanction of preclusion is not warranted “to restore balance to the matter” (Baldwin v Gerard Ave., LLC, 58 AD3d 484 [2009]). Rather, an adverse inference is sufficient to prevent defendant from using the absence of the videotape to its own advantage (Tomasello v 64 Franklin, Inc., 45 AD3d 1287 [2007]).

Panagiotou v Samaritan Vil., Inc., 2009 NY Slip Op 07811 (App. Div., 2nd, 2009)

The plaintiffs failed to serve a responsive bill of particulars within the 30-day time limit set in the conditional order of preclusion entered February 25, 2008. The order, therefore, became absolute (see Gilmore v Garvey, 31 AD3d 381; Echevarria v Pathmark Stores, Inc., 7 AD3d 750, 751). To avoid the adverse impact of the conditional order of preclusion, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply and a meritorious cause of action (see State Farm Mut. Auto Ins. Co. v Hertz Corp., 43 AD3d 907, 908; Echevarria v Pathmark Stores, Inc., 7 AD3d at 751). The plaintiffs failed to make such a showing. Since the order of preclusion prevents the plaintiffs from establishing a prima facie case, the Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint (see Calder v Cofta, 49 AD3d 484; State Farm Mut. Auto Ins. Co. v Hertz Corp., 43 AD3d at 908).

Bender, Jenson & Silverstein, LLP v Walter, 2009 NY Slip Op 08572 (App. Div., 2nd, 2009)

Since the defendant failed to establish that she made any effort to comply with the plaintiff’s repeated discovery requests, the Supreme Court properly considered her lack of cooperation to be willful and contumacious, and properly conditionally granted the plaintiff’s motion to preclude her from introducing the requested documents in evidence (see Kihl v Pfeffer, 94 NY2d 118; D’Aloisi v City of New York, 7 AD3d 750; Brooks v City of New York, 6 AD3d 565; Donovan v City of New York, 239 AD2d 461; cf. Scardino v Town of Babylon, 248 AD2d 371).

In light of the defendant’s noncompliance with discovery, the Supreme Court properly denied her motion to quash certain subpoenas which had been served on nonparty witnesses, on the basis that the information sought was otherwise unobtainable (see Hamilton v Touseull, 48 AD3d 520; Matter of Validation Review Assoc. [Berkuny Schimel], 237 AD2d 614; cf. People v Marin, 86 AD2d 40).

The bold is mine.

A Brief CPLR R. 5015 Roundup and CPLR R. 2214(d) Appears For The First Time In this Blog.

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 R. 2214 Motion papers; service; time
(d) Order to show cause

MBF Leasing, LLC v Sisco, 25 Misc 3d 128(A) (App. Term, 1st, 2009)

Civil Court correctly denied, without a traverse hearing, that branch of defendant's motion seeking vacatur of the default judgment and dismissal of the complaint for lack of personal jurisdiction under CPLR 5015(a)(4) because defendant failed to sufficiently refute the factual averments contained in plaintiff's process server's affidavit of service. Defendant is nonetheless entitled to vacatur of the default judgment and an opportunity to answer the action on the merits. In light of defendant's potentially meritorious defense to the action (see Pludeman v N. Leasing Sys., 10 NY3d 486 [2008]), the absence of any discernable prejudice to plaintiff (which did not oppose defendant's motion and has not filed a respondent's brief on this appeal), defendant's showing that the default was not willful, and our preference for resolving actions on the merits, we vacate the default judgment under our "inherent discretionary power" to relieve defendant of his default "for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see Siegel, NY Practice § 426, 725 [4th ed]).

Although the court in its discretionary power may vacate a default even though the party did not satisfy any of the conditions in CPLR R. 5015, I don't understand why the court would say that the defendant was entitled to vacatur.  Going by Webster's definition of entitle, the word hardly seems to fit.  Vacatur was a gift in this case.  Also interesting is that the defendant's motion to vacate was unopposed.  Neither was the appeal.  Unless defendant attached plaintiff's affidavit or service, how was it before the lower court?  Judicial Notice?

Speaking of weird…

Merriwether v Osborne, 2009 NY Slip Op 07602 (App. Div., 2nd, 2009)

By order dated May 22, 2007, the Supreme Court granted, apparently without opposition, the defendants' separate motions for summary judgment dismissing, inter alia, the complaint insofar as asserted against them, and a judgment dismissing the complaint was entered subsequently. Although the plaintiff was duly served with both the order and the judgment with notice of entry, he neither appealed nor moved to vacate. Nearly two years later, the Supreme Court, sua sponte, without explanation, vacated the order dated May 22, 2007, and, in effect, the judgment, and denied the defendants' motions for summary judgment.

On appeal, the defendants contend that the Supreme Court exceeded its authority in, sua [*2]sponte, vacating the order and, in effect, the judgment. We agree.

"A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment" (Adams v Fellingham, 52 AD3d 443, 444-445; see Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836; Matter of Owens v Stuart, 292 AD2d 677, 678-679; cf. Liss V Trans Auto Sys., 68 NY2d 15, 20). Here, the court exceeded its powers by its unexplained sua sponte attempt to reconsider the summary judgment motions anew almost two years after the case was dismissed by judgment (see Matter of Owens v Stuart, 292 AD2d at 679).

WTF?

Wells Fargo Bank, N.A. v Leiba, 2009 NY Slip Op 07833 (App. Div., 2nd, 2009)

The Supreme Court properly denied the motion of the defendant Lisa Morris to vacate a judgment of foreclosure and sale dated October 27, 2005, as she failed to serve the order to show cause by which the motion was initiated in the manner specified, and within the time provided (see CPLR 2214[d]; Alden Personnel, Inc. v David, 38 AD3d 697, 698).

A bad employee can be a reasonable excuse.  See below.

Rodriguez v Rodriguez, 2009 NY Slip Op 08150 (App. Div., 1st, 2009)

Defendant's attorney's representation that a former employee had been misdirecting or misplacing mail provides a reasonable excuse for his failure to present such evidence of law office failure on defendant's original motion to vacate the default judgment as well as his failure to appear in court on various dates (see Solowij v Otis Elev. Co., 260 AD2d 226 [1999]). Defendant's affidavit shows a meritorious defense.

The bold is mine.

No New Arguments in the Reply, and Res Judicata

Djoganopoulos v Polkes, 2009 NY Slip Op 08173 (App. Div., 2nd, 2009)

Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614; Sclafani v Story Book Homes, 294 AD2d 559, 559-560). The complaint in the prior related action was dismissed on the ground that it did "not contain any factual averments against" Jonathan D. Polkes, Ellen G. Polkes, and Megan Strecker. "Rather, the conduct complained of involves only the Village [of Westhampton Dunes and its officials]" (Feder v Polkes,AD3d [decided herewith]). Therefore, the dismissal was not on the merits, and the doctrine of res judicata does not apply in the instant case (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614).

We do not consider the defendants' contention that the plaintiffs failed to join necessary parties since it was improperly raised for the first time in their reply papers before the Supreme Court (see Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825; Luft v Luft, 52 AD3d 479, 480; Medugno v City of Glen Cove, 279 AD2d 510, 511-512).

Hantz v Hillman Hous. Corp., 2009 NY Slip Op 07933 (App. Div., 1st, 2009)

The tenant's second action seeking to compel the Board to grant his request to install an in-wall air conditioning system arose out of the same transaction, and facts, as had been considered in the tenant's prior litigation on the issue. The nature of tenant's proposed air conditioning installation and reasons for its need (i.e., medical, aesthetics, etc.) remained unchanged from the facts available at the time of the Board's original July 2005 determination, as well as at the time of the aforementioned prior litigation. Whether a mistaken factual assumption by the Board in considering Hantz's first application led to an errant determination may not be revisited based upon re-submission of the same facts, pertaining to the same transaction, as had been originally considered by the Board (see e.g. Mchawi v State Univ. of N.Y., Empire State Coll., 248 AD2d 111, 112 [1998], lv denied 92 NY2d 804 [1998]). The applicable statute of limitations period for challenging the Board's 2005 determination having since expired, Hantz's alleged new claim based on the same facts as those previously considered was properly dismissed on res judicata grounds (see e.g. Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 4-5 [2000]).

Jericho Group Ltd. v Midtown Dev., L.P., 2009 NY Slip Op 07946 (App. Div., 1st, 2009)

The two actions are based on the same transaction, namely the sale of real property, and the prior action was dismissed on the merits, and not merely because of technical pleading defects (see Heritage Realty Advisors, LLC v Mohegan Hill Dev., LLC, 58 AD3d 435 [2009], lv denied 12 NY3d 830 [2009]; Lampert v Ambassador Factors Corp., 266 AD2d 124 [1999]). Even though this Court, in granting defendant Midtown's motion to dismiss the complaint in the prior action, did not state that it was dismissing the action on the merits (32 AD3d 294 [2006]), an examination of our ruling clearly demonstrates that the claims were dismissed on the merits (see Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558 [1989]).

Contrary to plaintiff's contention, this Court's subsequent order denying its motion to, inter alia, vacate the judgment of dismissal (47 AD3d 463 [2008], lv dismissed 11 NY3d 801 [2008]), has preclusive effect for purposes of res judicata, especially since it resulted in the reentry of the judgment of dismissal. This Court's ruling that plaintiff "fails to show fraud in the underlying transaction" (47 AD3d at 464), was not mere dicta and acts as a bar to plaintiff's claim of willful and deliberate breach of the contract (see O'Brien v City of Syracuse, 54 NY2d 353, 357-358 [1981]). Indeed, the claims are based on the same alleged misconduct, namely, defendants' failure to provide documents on an oil spill near the subject property and information regarding the nonexistence of certain exhibits referenced in the contract of sale. With respect to plaintiff's claims that it is entitled to specific performance because it cancelled the contract as a result of defendants' alleged willful and deliberate misconduct and because its attorney did not have the authority to cancel the contract, those claims are barred under the doctrine of res judicata because they could have been raised in the prior action (see Fifty CPW Tenants Corp. v [*2]Epstein, 16 AD3d 292, 293-294 [2005]).

Because plaintiff had reviewed the documents illustrating defendants' alleged fraud prior to commencing the first action, it cannot elude issue or claim preclusion "under the rubric of fraud" (Smith v Russell Sage Coll., 54 NY2d 185, 193 [1981]).

Schloss v Jones, 2009 NY Slip Op 08207 (App. Div., 2nd, 2009)

The doctrine of res judicata operates to preclude the reconsideration of claims actually litigated and resolved in a prior action, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior action (see Mahler v Campagna, 60 AD3d 1009, 1011; Matter of Kafka v Meadowlark Gardens Owners, Inc., 34 AD3d 676, 677). In the instant action, the plaintiff sets forth the same allegations that were or could have been resolved in a prior action. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the complaint as barred by the doctrine of res judicata (see QFI, Inc. v Shirley, 60 AD3d 656, 657; Lefkowitz v Schulte, Roth & [*2]Zabel, 279 AD2d 457; Pappas v Cerrone, 281 AD2d 608).

The bold is mine.

It’s almost impossible to wiggle your way out of a stipulation–CPLR R. 2104

Far more parties are finding their stipulations to be oppressive than in the past few months.  I guess that's not true, but there are more appellate decisions on the issue than there have been in the past few months.  And that's close enough for me.  One of the benefits of blogging is that I have the opportunity to notice patterns in appellate law as it develops.  Eventually I hope to see one.  But for now, I'll keep on noting the obvious.  And hopefully, having made you read this, I've made you a little dumber than you were before.  You're welcome.

CPLR R. 2104 Stipulations

ABA Consulting, LLC v Liffey Van Lines, Inc., 2009 NY Slip Op 07923 (App. Div., 1st, 2009)

Next, defendant urges that the settlement agreement should be
vacated on the ground of mutual mistake, arguing that the parties must
have contemplated reimbursement for tax arrears. However, while mutual
mistake may furnish grounds for vacating a written agreement, there is
a " heavy presumption that a deliberately prepared and executed written
instrument manifest[s] the true intention of the parties'" and the
"proponent of reformation must show in no uncertain terms, not only
that mistake or fraud exists, but exactly what was really agreed upon
between the parties'" (Chimart Assoc. v Paul, 66 NY2d 570, 574 [1986], quoting Backer Mfg. Corp. v Acme Quilting Co.,
46 NY2d 211, 219 [1978]). Defendant has not established that the
parties came to any agreement, or even contemplated the refund of
payments recouped by the taxing authorities, or that either had any
knowledge, at the time the settlement agreement was executed, that
defendant would be audited. Accordingly, the settlement agreement
cannot be vacated on the ground of mutual mistake.

Defendant next argues that the settlement agreement should be
vacated on the ground of unilateral mistake, contending that it was
induced to pay fees upon the mistaken belief that any audit reducing
its tax refunds would entitle it to a proportional refund or credit
from plaintiff. However defendant presents no evidence that plaintiff
fraudulently induced it to enter into the settlement agreement upon the
false representation that it would adjust its fees if additional taxes
were found due, as required for a finding that the contract was the
product of unilateral mistake (Rosen Auto Leasing, Inc. v Jacobs, 9 AD3d 798,
800 [2004]). In fact, the settlement agreement was an arm's length
transaction between businessmen who were represented by counsel, and
the terms of plaintiff's compensation was consistent with that set
forth in the parties original [*3]consulting agreement. We find no basis on this record for vacating that agreement (see Greater N.Y. Mut. Ins. Co. v United States Underwriters Ins. Co., 36 AD3d 441, 443 [2007]).

Dubi v Skiros Corp., 2009 NY Slip Op 07793 (App. Div., 2nd, 2009)

"Stipulations entered into in open court are favored by the courts and
are to be set aside only where there is cause sufficient to invalidate
a contract such as fraud, duress, collusion, or mistake" (Feuer v Darkanot, 36 AD3d 753, 753-754; see Ramnarain v Ramnarain, 46 AD3d 655; Hallock v State of New York, 64 NY2d 224, 230; Chernow v Chernow, 51 AD3d 705, 706; Feuer v Darkanot, 36 AD3d 753, 753-754; Desantis v Ariens Co., 17
AD3d 311). In order to vacate a stipulation on the ground of duress, a
party "must demonstrate that threats of an unlawful act compelled his
or her performance of an act which he or she had the legal right to
abstain from performing'" (Feuer v Darkanot, 36 AD3d at 754, quoting Polito v Polito, 121 AD2d 614, 614-615). "Generalized contentions that a party felt pressured by the court are insufficient" (Desantis v Ariens Co., 17 AD3d at 311; see Matter of Blackstock v Price, 51 AD3d 914; Ross v Clyde Beatty-Cole Bros. Circus, 26 AD3d 321, 322; Shuler v Dupree, 14 AD3d 548, 549; Cavalli v Cavalli, 226
AD2d 666, 667). In the present case, the record fails to support the
plaintiff's contention that the stipulation of settlement was the
product of duress.

Castellano v Castellano, 2009 NY Slip Op 07784 (App. Div., 2nd, 2009)

"Stipulations of settlement are favored by the courts and are not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230; see Matter of Siegel, 29 AD3d 914; Shapira v Shapira, 283
AD2d 477, 478 ). "[A]n oral stipulation of settlement with respect to
property issues in a matrimonial action, if spread upon the record and
found to be fair and reasonable by the court, is not to be disturbed
absent a showing of one of the traditional' grounds for vacatur, e.g.,
fraud, duress, mistake or overreaching" (Zafran v Zafran, 28 AD3d 752, 753, quoting Harrington v Harrington, 103 AD2d 356, 359; see Korngold v Korngold, 26 AD3d 358; Leahy v Leahy, 9 AD3d 351, 352).

Applying these principles to the matter at bar, the Supreme
Court properly determined that the plaintiff failed to meet her burden
in seeking to set aside the parties' stipulation of settlement (see Dimino v Dimino, 39 AD3d 799, 800; Brennan-Duffy v Duffy, 22 AD3d 699; Jacobs v Jacobs, 234 AD2d 425), and failed to establish that the stipulation of settlement was the result of duress or [*2]overreaching on the part of the defendant (see Garner v Garner, 46 AD3d 1239, 1240; Rubin v Rubin, 33 AD3d 983, 985-986; Chambers v McIntyre, 5 AD3d 344, 345). Accordingly, the court correctly denied the motion to set aside the stipulation of settlement.

Montgomery Trading LLC v Siegel, 25 Misc 3d 128(A) (App. Term, 1st, 2009)

Civil Court properly denied tenants' motion to vacate the two-attorney, so-ordered
stipulation of settlement resolving the underlying nonpayment summary proceeding since tenants
failed to demonstrate legal cause for such relief, e.g., fraud, collusion, mistake or accident
(see Hallock v State of New York, 64 NY2d 224, 230 [1984]). The belated attempt by
tenants' incoming counsel to inject into the settled litigation an (unpleaded) rent forfeiture
defense not referenced in the stipulation does not provide a proper basis to vacate the binding
stipulation, assented to by tenants upon advice of prior counsel.

Parties should think long and hard before they enter into stipulations, because, once they do, it is extremely difficult to get out of it.  It takes more than a sad story or hindsight.  Much more. 

In some cases, what you thought was an email, might very well be a stipulation.  See, Williamson v Delsener, 2009 NY Slip Op 01333 (App. Div., 1s, 2009).  Remember that.

Sanctions (22 NYCRR 130-1.1) and Contempt. A non-party can’t be sanctioned under 130-1.1

Thankfully, these are short decisions.

22 NYCRR 130-1.1 Costs; sanctions

Singer v New York City Tr. Auth., 2009 NY Slip Op 07956 (App. Div., 1st, 2009)

Supreme Court providently exercised its discretion in denying
plaintiff's motion for sanctions, which was brought eight months after
the trial had concluded with a verdict in plaintiff's favor. While the
trial court had stated that plaintiff could move for sanctions
"whenever [she] wish[ed] to," this remark did not provide plaintiff
with an unlimited period of time to bring the motion, and as the court
found, the eight-month delay was unreasonable.

Ficus Invs., Inc. v Private Capital Mgt., L.L.C., 2009 NY Slip Op 07493 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered
September 10, 2008, which, to the extent appealed from as limited by
the brief, granted plaintiffs' motion to hold defendant Christopher
Chalavoutis in civil contempt, unanimously affirmed, with costs.

The record demonstrates that in February 2008 defendant was
instrumental in negotiating the conveyance of certain mortgages without
providing notice to plaintiffs, thereby disobeying an order of the
court, entered December 21, 2007, that prohibited defendant from taking
any action with respect to the subject mortgages "without first
providing 48 hour[] written notice" to counsel for plaintiffs. The
record further demonstrates that defendant's actions were calculated to
impair, impede or prejudice plaintiffs' rights (see Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]).

Joan 2000, Ltd. v Deco Constr. Corp., 2009 NY Slip Op 07593 (App. Div., 2nd, 2009)

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the attorney for a party for frivolous conduct (see
22 NYCRR 130-1.1[b]). Conduct is frivolous if it is completely without
merit in law or fact and cannot be supported by a reasonable argument
for the extension, modification, or reversal of existing law; it is
taken to primarily delay or prolong the resolution of the litigation,
or harass or maliciously injure another; or it asserts material factual
statements that are false (see 22 NYCRR 130-1.1[c]; Mascia v Maresco, 39 AD3d 504; Greene v Doral Conference Ctr. Assoc.,
18 AD3d 429, 431). Here, the Supreme Court improvidently exercised its
discretion in imposing a sanction upon Eric W. Berry, the attorney for
the defendant WBP Central Associates, LLC, as his conduct was not
frivolous within the meaning of 22 NYCRR 130-1.1 (see Wagner v Goldberg, 293 AD2d 527; Matter of Gavilanes v Dilan, 281 AD2d 546).

Additionally, the Supreme Court had no authority to impose a sanction
upon Anthony Piazza pursuant to 22 NYCRR 130-1.1, since he is neither a
party to this action nor an attorney (see Brock v Wagner, 283 AD2d 535; Saastomoinen v Pagano, 278 AD2d 218).

G&T Term. Packaging Co. Inc. v Western Growers Assn., 2009 NY Slip Op 07503 (App. Div., 1st, 2009)

The IAS court did not abuse its discretion by determining that
plaintiffs' conduct was frivolous within the meaning of 22 NYCRR
130-1.1(c)(2) (see Pickens v Castro, 55 AD3d 443,
444 [2008]). Contrary to plaintiffs' claim, courts take into
consideration the entire dispute between the parties, not just the
lawsuit in which sanctions are imposed (see Murray v National Broadcasting Co., 217 AD2d 651, 653 [1995]; Matter of Jemzura v Mugglin, 207 AD2d 645 [1994], appeal dismissed
84 NY2d 977 [1994]). If plaintiffs wished to litigate the underlying
merits of the parties' dispute, e.g., the quality of the produce sold
by one of the defendants to one of the plaintiffs (see 56 AD3d 266 [2008], appeal dismissed 12 NY3d 729 [2009]), they should have
pursued their federal appeals (see generally Jason v Chusid, 172 AD2d 172, 173 [1991], lv dismissed 78 NY2d 1008 [1991]).

The bold is mine.

22 NYCRR § 208.14(c); CPLR R. 3404; an interesting (but wrong) theory re: law of the case

Law of the case

22 NYCRR § 208.14 Calendar default; restoration; dismissal

(c) Actions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken. A motion must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.

CPLR R. 3404 Dismissal of abandoned cases

Bowman v Beach Concerts, Inc., 2009 NY Slip Op 07747 (App. Div., 1st, 2009)

As plaintiff concedes, the showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment (see Kaufman v Bauer, 36 AD3d 481, 482 [2007]). Indeed, this Court has previously held that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants (see Gamiel v Curtis & Reiss-Curtis, P.C., 60 AD3d 473, 474 [2009], lv dismissed __ NY3d __ [2009], 2009 NY LEXIS 3484; see also Embraer Fin. Ltd. v Servicios Aereos Profesionales, S.A., 42 AD3d 380, 381 [2007]). Thus, plaintiff's argument that this Court's prior order was "law of the case" precluding summary judgment in respondents' favor, or an "implicit recognition" of the merits of his claims, is without merit.

Deltejo v St. Nicholas Venture Inc., 2009 NY Slip Op 07689 (App. Div., 1st, 2009)\

Because the dismissal order, under CPLR 3404, did not result from an order on notice, it is not appealable as of right. However, we deem the notice of appeal to be a motion for leave to appeal, and exercise our discretion (CPLR 5701[c]) to grant leave and consider the merits of this appeal (see Jun-Yong Kim v A & J Produce Corp., 15 AD3d 251 [2005]; Mulligan v New York Cornell Med. Ctr., 304 AD2d 492 [2003]).

The matter is restored to the trial calendar without prejudice to defendants' seeking preclusion relief. It is apparent that another Justice on a prior motion for restoration had intended that the matter go to trial, and that if plaintiff could not produce certain medical evidence, defendants' remedy would be issue preclusion, not an order striking the complaint. Defendants argue that the prior order was wrongly decided and the motion to restore should have been denied outright. However, defendants did not appeal from that order, and in any event, their argument is without merit (see Burgos v 2915 Surf Ave. Food Mart, 298 AD2d 282 [2002]).

.

CPLR R. 3212(a)(f) Shennanigans and CPLR § 3213

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action
(b) Supporting proof; grounds; relief to either party
(f) Facts unavailable to opposing party

CPLR § 3213 Motion for summary judgment in lieu of complaint

Abdalla v Mazl Taxi, Inc., 2009 NY Slip Op 07566 (App. Div., 2nd, 2009)

The defendants established good cause in support of that branch of
their motion which was for leave to extend their time to move for
summary judgment until 120 days after receipt of all outstanding
discovery, since there was significant discovery outstanding at the
time the note of issue was filed (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Jones v Grand Opal Constr. Corp., 64 AD3d 543; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724). Therefore, that branch of their motion should have been granted.

Delacruz v Ostrich Cab Corp., 2009 NY Slip Op 07577 (App. Div., 2nd, 2009)

The defendants failed to meet their prima facie burden of showing that
the plaintiff did not sustain a serious injury within the meaning of
Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79
NY2d 955, 956-957). During his examination of the plaintiff, the
defendants' orthopedic surgeon found restrictions in the range of
motion of the plaintiff's lumbar spine, which he described as
"self-restricted." However, he failed to explain or substantiate with
any objective medical evidence the basis for his conclusion that the
limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Accordingly, the Supreme Court properly denied the defendants' motion
for summary judgment without considering the sufficiency of the
plaintiff's opposition papers (see Cuevas v Compote Cab Corp., 61 AD3d 812; Coscia v 938 Trading Corp., 283 AD2d 538). 

Solomon v Langer, 2009 NY Slip Op 07335 (App. Div., 1st, 2009)

Plaintiff established her entitlement to summary judgment in lieu of
complaint on the promissory note made by defendant by establishing
execution, delivery, demand and failure to pay (see Israel Discount Bank of N.Y. v 500 Fifth Ave. Assoc.,
167 AD2d 203 [1990]). Defendant failed to substantiate, in evidentiary
form, his assertion that payments to plaintiff's mother, an alleged
business acquaintance since deceased, discharged the note. Defendant
sets forth no evidence of misleading conduct on the part of plaintiff
indicating that she gave her mother the authority to transact business
on her behalf (compare Hallock v State of New York, 64 NY2d 224,
231 [1984]). Furthermore, the note unequivocally stated that payment
was to be made directly to plaintiff and the parol evidence rule bars
consideration of defendant's purported oral agreement with plaintiff's
mother regarding payment of the loan (see Manufacturers Hanover Trust Co. v Margolis,
115 AD2d 406 [1985]). Moreover, it is settled that "invocation of
defenses based on facts extrinsic to an instrument for the payment of
money only do not [*2]preclude CPLR 3213 consideration" (Alard, L.L.C. v Weiss, 1 AD3d 131,767 NYS2d 11, 2003 N.Y. Slip Op. 18173).

Davila v New York City Tr. Auth., 2009 NY Slip Op 07792 (App. Div., 2nd, 2009)

The opposition to the motion submitted by Keyspan and the defendant
Liberty Department Store, the only parties who opposed the motion,
failed to raise a triable issue of fact (see CPLR 3212[b]). [*2]Moreover,
contrary to the contention of those defendants, the appellant's motion
was not premature, as they failed to offer an evidentiary basis to
suggest that discovery may lead to relevant evidence and that facts
essential to justify opposition were exclusively within the knowledge
or control of the appellant (see Lopez v WS Distrib., Inc., 34
AD3d 759, 760). "The mere hope or speculation that evidence sufficient
to defeat a motion for summary judgment may be uncovered during the
discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34
AD3d 759). Accordingly, the Supreme Court should have granted the
appellant's motion for summary judgment dismissing the complaint and
all cross claims insofar as asserted against it.

and finally,

Stoian v Reed, 2009 NY Slip Op 07713 (App. Div., 3rd, 2009)

We also reject plaintiffs' assertion that Supreme Court abused its
discretion in failing to grant them additional time with which to
conduct discovery. Although the court had the discretion to permit
further discovery if it found that "facts essential to justify
opposition [to a motion for summary judgment] may exist but cannot then
be stated" (CPLR 3212 [f]; see Clochessy v Gagnon, 58 AD3d
1008, 1010 [2009]), "the nonmoving party must produce some evidence
indicating that further discovery 'will yield material and relevant
evidence'" (Fleischman v Peacock Water Co., Inc., 51 AD3d 1203, 1205 [2008], quoting Zinter Handling, Inc. v Britton, 46 AD3d 998,
1001 [2007] [citation omitted]). "The 'mere hope' that evidence
sufficient to defeat the motion may be uncovered during the discovery
process is not enough" (Mazzaferro v Barterama Corp., 218 AD2d 643, 644 [1995], quoting Jones v Gameray, 153 AD2d 550, 551 [1989]; see Clochessy v Gagnon, 58 AD3d at 1010).

Here, plaintiffs requested an extension to obtain testimony from
three contractors that had worked on the house. However, plaintiffs
fail to provide any specifics as to how these [*3]individuals could provide evidence material and relevant to defendants' alleged active concealment (see Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Further, it is undisputed that plaintiffs provided
defendants with a list of contractors who worked on the house prior to
the 1999 closing; indeed, plaintiff admitted during his deposition that
he spoke with at least two of these individuals regarding repairs to
the house (see Flieschman v Peacock Water Co., Inc., 51 AD3d at 1205; Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Under these circumstances, and given the fact that
plaintiffs provide no reasonable excuse for delaying their request for
additional discovery for over two years following depositions and,
indeed, nearly six years after commencing this action, we find no abuse
of discretion in Supreme Court's decision to deny plaintiffs' request (see Dalaba v City of Schenectady, 61 AD3d 1151, 1153 [2009]).

No-fault Defender talks about the case too.

Standing Waived; CPLR R. 3211(e) and other issues (CPLR § 3020(d)(3) & CPLR § 105(u))

CPLR R. 3211(e) Number, time and waiver of objections; motion to plead over

CPLR § 3020 Verification

CPLR § 105 Definitions

(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

Deutsche Bank Natl. Trust Co. v Young, 2009 NY Slip Op 07578 (App. Div., 2nd, 2009)

Contrary to the appellants' contention, the Supreme Court did not err
in determining that they waived the issue of standing by failing to
timely appear or answer (see CPLR 3211[a][3], [e]; HSBC Bank, USA v Dammond, 59 AD3d 679; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239).

Simple enough.

Urban Justice Ctr. v Silver, 2009 NY Slip Op 07506 (App. DIv., 1st, 2009)

Plaintiff Urban Justice Center (UJC) lacks standing to bring this
action. While it alleges vaguely that the prohibitions on communication
contained in the Assembly and Senate rules as to what constitutes
"official mail" for purposes of Legislative Law § 16 interfere with its
ability and that of its clients to receive the communications necessary
to enable them to measure the responsiveness and efficacy of their
elected representatives while determining the best use of their limited
advocacy resources, this is not an infringement unique and distinct to
UJC and its clients. All citizens have the right to open access to
their elected representatives, and are deprived of that right when
communications from their legislators are censored. UJC has failed to
allege a personally concrete and demonstrable injury distinct from that
suffered by the public at large (see Matter of Transactive Corp. v New York State Dept. of Social Servs.,
92 NY2d 579, 587 [1998]). For the same reason, UJC also lacks
third-party standing to raise a First Amendment claim on behalf of its
clients (see Matter of MFY Legal Servs. v Dudley, 67 NY2d 706,
708-709 [1986]). Because it has not alleged that the rules and
practices at issue have caused it "injury by way of an added burden on
[its] resources," or that its need to litigate this action on behalf of
its clients is such a "central concern of our society" as to justify
giving it standing without otherwise meeting the requirement of showing
injury-in-fact, there is no basis for conferring organizational
standing upon UJC under Grant v Cuomo (130 AD2d 154, 159 [1987], affd 73 NY2d 820 [1988]).

A little more complicated.

Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (App. Div., 2nd, 2009)

Wells Fargo also contends that the assignment is valid, as it is
retroactive to October 28, 2007, a date prior to the commencement of
the action. Wells Fargo again relies on Hoovis, where the retroactive assignment was effective on May 1, 1997, prior to the commencement of the action on June 19, 1997 (see Bankers Trust Co. v Hoovis, 263 AD2d at 938). In Hoovis, however,
the defendant was unable to contradict the plaintiff's documentation
demonstrating that delivery of the note and mortgage occurred prior to
the initiation of the action. Here, it is clear that the date of the
execution of the assignment was after the commencement of the action.
If an assignment is in writing, "the execution date is generally
controlling and a written assignment claiming an earlier effective date
is deficient unless it is accompanied by proof that the physical
delivery of the note and mortgage was, in fact, previously effectuated"
(LaSalle Bank Natl. Assn., 59 AD3d at 912). While recognizing
that in some circumstances parties to an agreement may bind themselves
retroactively, "the fiction of retroactivity . . . should not be
applied to affect adversely the rights of third persons" (Debreceni v Outlet Co., 784 F2d 13, 20; see also 2
Lord, Williston on Contracts § 6:61, at 893 [4th ed]). Thus, a
retroactive assignment cannot be used to confer standing upon the
assignee in a foreclosure action commenced prior to the execution of
the assignment (see LaSalle Bank Natl. Assn., 59 AD3d 912). We
disagree with the contention of Wells Fargo that public policy favors
permitting less than strict compliance with the requirement that, in
order to commence a foreclosure action, a plaintiff must have a legal
or equitable interest in the subject mortgage.

Wells Fargo also argues that if the action were to be
dismissed, the result would be a waste of judicial resources, as it
would simply commence another action as soon as the original action was
dismissed. Wells Fargo might have reached this conclusion earlier in
its calculus to commence the lawsuit prior to the execution of the
assignment.

Significantly, Wells Fargo's attorney submitted a verification
pursuant to CPLR 3020(d)(3), which allows an attorney to verify the
complaint if the party is not in the county where the attorney
maintains [*4]an office. "A verification
is a statement under oath that the pleading is true to the knowledge of
the deponent, except as to matters alleged on information and belief,
and as to those matters, he believes it to be true" (CPLR 3020[a]).
"Since the verification makes the pleading, or those parts of the
pleading that are verified, sworn data, a verified pleading is the
equivalent of an affidavit, CPLR 105, and may be used for the same
purposes" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C3020:2). When an attorney verifies, he or she affirms
under the penalties of perjury (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3020:9).

In the verification, Wells Fargo's attorney affirmed the
complaint to be true to the best of his knowledge, and his belief as to
matters stated to be alleged on information and belief was based upon
"correspondence, memoranda and statements of account in affirmant's
possession." The complaint included a paragraph that stated Wells Fargo
was "now the sole, true and lawful owner of record of the bond(s),
note(s) and mortgage(s) securing the Mortgaged Premises." This averment
was not based on information and belief and could not have been true on
the date of the verification, November 29, 2007, since the actual
execution of the assignment did not take place until December 4, 2007.
Thus, the complaint contained a misstatement of a material fact which
is not excused simply because the attorney was the one who verified the
complaint.

Note the Court's comment on the verification.  Rough.

Maldonado v Altemburger, 2009 NY Slip Op 07507 (App. Div. 1st, 2009)

This is the second action brought by plaintiff to recover damages
for injuries he allegedly sustained in a car accident. The first action
was dismissed as a nullity, because the person who was named as the
sole defendant had died before the action was commenced (see Maldonado v Law Off. of Mary A. Bjork, 64 AD3d 425
[2009]). This action must be dismissed because the named defendant is
not the personal representative of the decedent's estate (see id.; Marte v Graber, 58 AD3d 1, 3 [2008]).

It does not avail plaintiff that defendant did not cooperate
with him in his efforts to obtain the necessary documentation for a
SCPA 1002(1) petition for the appointment of an administrator.
Plaintiff apparently failed to timely seek a court order to obtain the
documentation.

Not quite a standing issue.  More of a there-isn't-anyone-to-sue issue.  Not even that.  More of a who-is-in-charge-of-this-thing issue.

Post Note of Issue Discovery and Privilege, but not in that order

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3101(d) Trial Preparation (2) Materials

CPLR § 3101(c)  Attorney's work product

McClier Corp. v United States Rebar, Inc., 2009 NY Slip Op 06786 (App. Div., 1st, 2009)

In response to plaintiff's discovery demands, defendants submitted
privilege logs that identified each of the documents withheld and set
forth a basis for the assertion of a privilege as to each. The motion
court then conducted an in camera review of the withheld documents and
ruled that most were protected by either the attorney-client privilege
(CPLR 3101[b]) or the immunities for attorney work product (CPLR
3101[c]) and materials prepared for litigation (CPLR 3101[d][2]). No
basis exists to disturb this ruling. Documents in an insurer's claim
file that were prepared for litigation against its insured are immune
from disclosure (Grotallio v Soft Drink Leasing Corp., 97 AD2d
383 [1983]), and, while documents prepared in an insurer's ordinary
course of business in investigating whether to accept or reject
coverage are discoverable (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [2005]), there is no [*2]indication
that any such documents are being protected here. We have considered
plaintiff's remaining arguments and find unavailing.

Compare with 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 2009 NY Slip Op 03793 (App. Div., 1st, 2009)("Here the motion court properly
determined that the documents were not protected because appellant
failed to demonstrate that the investigation was conducted solely in
anticipation of litigation. Such reports of insurance investigators or
adjusters prepared during the processing of a claim are discoverable in
the regular course of the insurance company's business")

Singh v 244 W. 39th St. Realty, Inc., 2009 NY Slip Op 06826 (App. Div., 2nd, 2009)

To prevent substantial prejudice, the Supreme Court, in its
discretion, may grant leave 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 requiring additional pretrial
proceedings (22 NYCRR 202.21[d]; see James v New York City Tr. Auth., 294 AD2d 471, 472; Audiovox Corp. v Benyamini, 265
AD2d 135, 140). Here, approximately nine months after the filing of the
note of issue, the plaintiff served a supplemental bill of particulars
and an expert report with worksheets alleging that the cost of his
future medical care would be approximately $8.9 million. This amount
was more than three times what had been alleged earlier. Under these
circumstances, the defendants demonstrated that "unusual or
unanticipated circumstances" developed subsequent to the filing of the
note of issue, justifying an additional deposition of the plaintiff
regarding his claim for future medical care (cf. Karakostas v Avis Rent A Car Sys., 306
AD2d 381, 382). Accordingly, that branch of the defendants' motion
which was for leave to conduct additional discovery of the plaintiff
with respect to his claim for future medical care should have been
granted.

The defendants, however, failed to demonstrate that "unusual or
unanticipated circumstances" developed subsequent to the filing of the
note of issue with respect to surveillance videos [*2]of
the plaintiff or the plaintiff's claim for lost wages. The plaintiff's
supplemental bill of particulars claiming lost wages was served
approximately nine months prior to the filing of the note of issue and
one year and eight months prior to the defendants' motion, and the
plaintiff did not allege that the amount of his claim for lost wages,
as opposed to his claim for future medical care, had changed
dramatically (see Schenk v Maloney, 266 AD2d 199, 200; Frangella v Sussman, 254
AD2d 391, 392). Moreover, the defendants failed to explain why the
surveillance could not have been conducted earlier in the discovery
process (see Audiovox Corp. v Benyamini, 265 AD2d at 140).
Accordingly, those branches of the defendants' motion which were for
leave to conduct additional discovery of the plaintiff with respect to
the surveillance videos and his claim for lost wages were properly
denied.

Polygram Holding, Inc. v Cafaro, 2009 NY Slip Op 07165 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered
April 29, 2009, which, to the extent appealed from as limited by the
briefs, limited the scope of an EBT granted to defendant and denied
defendant's motion to strike the note of issue, unanimously affirmed,
without costs.

The court appropriately struck a discretionary balance in
granting defendant certain additional discovery consistent with our
prior discovery ruling in this matter (42 AD3d 339, 340-341), while
maintaining control of its trial calendar (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190 [2005]).

The bold, of course, is mine.

CPLR R. 3212 generally

CPLR R. 3212 Motion for summary judgment

Pellegrini v Brock, 2009 NY Slip Op 06721 (App. Div., 1st, 2009)

"On a motion for summary judgment, the court should accept as true the evidence submitted by the opposing party" (O'Sullivan v Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Ctr.,
217 AD2d 98, 101 [1995]). Here, defendant-respondent submitted evidence
in admissible form which raised a triable issue of fact as to whether
the money at issue was a gift or a loan, including, inter alia, an
affidavit from a non-party who said that plaintiff Roberta Pellegrini
had told her that plaintiffs had given defendants money to buy a house.

The bold is mine.