Remittitur or Remand

CPLR § 5524

Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 2012 NY Slip Op 04713 (2nd Dept. 2012)

Upon an opinion of the Court of Appeals dated June 3, 2010, this matter was remitted to the Supreme Court, Nassau County, to determine whether the defendants were entitled, under the terms of the parties' employment agreement, to a setoff derived from certain specified funds, if any, held by the plaintiff, against the amount of the plaintiff's recovery in this action (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 14 NY3d 898). The defendants contend, however, that contrary to the Supreme Court's interpretation of the Court of Appeals' decision and order, the remittal instructions did not preclude the Supreme Court from entertaining and granting their motion for leave to renew their prior motion for leave to amend their answer to include an affirmative defense based on breach of contract, and a counterclaim based on breach of fiduciary duty, and thereupon awarding them summary judgment dismissing the complaint based on the proposed affirmative defense and on the proposed counterclaim.

"[A] trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith" (United States v Pink, 36 NYS2d 961, 965). "The judgment or order entered by the lower court on a remittitur must conform strictly to the remittitur, and it cannot afterwards be set aside or modified by the lower court" (Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc 1003, 1007, affd 270 App Div 993, affd 296 NY 822).

If the remittitur is erroneous in any respect, or if there is any uncertainty as to the effect of the language employed, the appropriate remedy is an application to amend it (see CPLR 5524; Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc at 1006). Contrary to the defendants' contention, the Supreme Court correctly adhered to the terms of the Court of Appeals' remittitur in this matter (cf. Wiener v Wiener, 10 AD3d 362, 362).

The defendants' remaining contentions are either barred by the law of the case doctrine (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754; RPG Consulting, Inc. v Zormati, 82 AD3d 739, 740), since they were previously determined by this Court (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 55 AD3d 538, revd on other grounds 14 NY3d 898), or without merit.

 Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 2012 NY Slip Op 04714 (2nd Dept. 2012)

The defendants are not aggrieved by so much of the order appealed from as granted that branch of their motion which was to discharge or cancel an appeal bond filed by them on January 22, 2009 (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144). Moreover, the appeal from so much of the order as denied that branch of the defendants' motion which was to discharge or cancel an appeal bond filed by them on May 23, 2007, has been rendered academic, since the initial judgment that the bond was meant to secure has been superseded by an amended judgment entered August 10, 2011. Further, findings of fact and conclusions of law which do not grant or deny relief are not independently appealable (see Matter of Flamenbaum,AD3d, 2012 NY Slip Op 04165, *2 [2d Dept 2012]; Ramirez v City of New York, 90 AD3d 1009, 1009; Verderber v Commander Enters. Centereach, LLC, 85 AD3d 770, 771). Thus, no appeal lies from so much of the order as determined that the plaintiff is entitled to enforce an interlocutory judgment, entered on the consent of the parties, that awarded him an attorney's fee. The mere fact that the order appealed from contains language which the defendants deem adverse to their interests does not render them aggrieved by that order (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473; Mixon v TBV, Inc., 76 AD3d at 148-149). In any event, the award of the attorney's fee pursuant to the interlocutory judgment was incorporated into the amended judgment entered August 10, 2011, which we are affirming in a companion appeal (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc.,AD3d [Appellate Division Docket No. 2011-08249, decided herewith]).

rare appellate procedure

Thomas v Kiriluk, 2012 NY Slip Op 03631 (2nd Dept., 2012)

"As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so" (Kitt v Podlofsky, 72 AD3d 1030, 1031; see Bray v Cox, 38 NY2d 350). Here, the plaintiffs appealed from an order dated November 10, 2010, which granted the defendants' motion for summary judgment dismissing the complaint, but the appeal was dismissed by decision and order on motion of this Court dated October 24, 2011, for failure to prosecute. Nevertheless, under the circumstances, we exercise our discretion to review the issues raised by the plaintiffs on their appeal from the judgment (see Kitt v Podlofsky, 72 AD3d at 1031).

Kalafatis v Royal Waste Servs., Inc., 2012 NY Slip Op 03603 (2nd Dept., 2012)

As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although this Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754; Bray v Cox, 38 NY2d 350, 353). While the better practice would have been for the plaintiff to withdraw the prior appeal rather than abandon it, nonetheless, we exercise our discretion to review the issues raised on the appeal from so much of the order dated April 27, 2011, as was made upon reargument (see Franco v Breceus, 70 AD3d 767; Newburger v Sidoruk, 60 AD3d 650; DiGiaro v Agrawal, 41 AD3d 764; Cesar v Highland Care Ctr., Inc., 37 AD3d 393).

On the face of the record

Interboro Ins. Co. v Fatmir, 89 AD3d 993 (2nd Dept., 2011)

To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy (see Novick v Middlesex Mut. Assur. Co., 84 AD3d 1330 [2011]; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855, 856 [2009]; Schirmer v Penkert, 41 AD3d 688, 690 [2007]; Zilkha v Mutual Life Ins. Co. of N.Y., 287 AD2d 713, 714 [2001]). A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented (see Insurance Law § 3105 [b]; Novick v Middlesex Mut. Assur. Co., 84 AD3d at 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d at 856). "To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application" (Schirmer v Penkert, 41 AD3d at 690-691).

Here, the plaintiff insurance company established its prima facie entitlement to judgment as a matter of law by demonstrating that its insured made misrepresentations in his application for homeowner's insurance, and that it would not have issued the subject policy had the insured disclosed that he did not reside in the subject premises because dwellings that are not owner occupied are deemed an unacceptable risk under its underwriting guidelines (see Varshavskaya v [*2]Metropolitan Life Ins. Co., 68 AD3d at 856). In opposition, the appellant failed to raise a triable issue of fact. Although the appellant argued in opposition that the plaintiff failed to timely disclaim coverage pursuant to Insurance Law § 3420 (d), a disclaimer pursuant to Insurance Law § 3420 (d) was not required because the policy only provided liability coverage to the insured for premises which he and his household occupied for residential purposes and, thus, "the policy never provided coverage" for the claim at issue (Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57, 60 [2000]; see generally Zappone v Home Ins. Co., 55 NY2d 131, 138 [1982]). While the plaintiff did not argue in the Supreme Court that a disclaimer was not required, "[o]n appeal, a respondent may [as here] proffer in support of affirmance any legal argument that may be resolved on the record, regardless of whether it has been argued previously, if the matter is one which could not have been countered by the appellant had it been raised in the trial court" (Sega v State of New York, 60 NY2d 183, 190 n 2 [1983]; see Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216 [2011]; Buywise Holding, LLC v Harris, 31 AD3d 681, 682 [2006]).

Appearing on the face of the record

Muniz v Mount Sinai Hosp. of Queens, 2012 NY Slip Op 00192 (2nd Dept., 2012)

However, questions of law which appear on the face of the record and which could not have been avoided if raised at the proper juncture may be raised for the first time on appeal (see Williams v Naylor, 64 AD3d 588; Matter of 200 Cent. Ave., LLC v Board of Assessors, 56 AD3d 679, 680; Block v Magee, 146 AD2d 730, 732-733), and such a question of law is presented here. "New York does not recognize an independent cause of action for punitive damages. Instead, [a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action'" (Randi A.J. v Long Is. Surgi-Ctr., 46 AD3d 74, 80, quoting Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616; see Aronis v TLC Vision Ctrs., Inc., 49 AD3d 576, 577; Yong Wen Mo v Gee Ming Chan, 17 AD3d 356, 359). Accordingly, the Supreme Court should have granted that branch of MSHQ's motion which was for summary judgment dismissing the fourth cause of action to recover punitive damages insofar as asserted against it. For the same reason, the Supreme Court should have granted that branch of the QLIMG defendants' motion which was for summary judgment dismissing the fourth cause of action to recover punitive damages insofar as asserted against them.

Polanco v Lewis Flushing Corp, 2012 NY Slip Op 00197 (2nd Dept., 2012)

As the plaintiff correctly concedes, the sole argument he raises on appeal was not advanced before the Supreme Court. Contrary to the plaintiff's contention, his argument does not present a pure question of law that could not have been avoided if raised at the proper juncture (see Matter of Panetta v Carroll, 62 AD3d 1010). Accordingly, his argument may not be reached for the first time on appeal (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043, 1044; Pekich v James E. Lawrence, Inc., 38 AD3d 632, 633).

Fix that appeal with CPLR § 5520 and othe good stuff

CPLR § 5520 Omissions; appeal by improper method

CPLR § 5512 Appealable Paper; entry of order made out of court

Republic Mtge. Ins. Co. v Countrywide Fin. Corp., 2011 NY Slip Op 06292 (1st Dept., 2011)

Initially, to reach the merits of plaintiffs' appeal, we exercise our discretionary authority, pursuant to CPLR 5520(c), to deem the inaccurate notice of appeal as valid to correct the procedural problem created here by plaintiffs' appeal from the order and not the judgment (Robertson v Greenstein, 308 AD2d 381 [2003], lv dismissed 2 NY3d 759 [2004]).

Clemons v Schindler El. Corp., 2011 NY Slip Op 06205 (1st Dept., 2011)

Purported appeals from decisions, Supreme Court, New York County (Judith J. Gische, J. and Ira Gammerman, J.H.O.), filed January 12, 2010, which, respectively, denied a motion to strike this matter from the trial calendar, and denied an application to adjourn the proceedings and directed dismissal of the complaint with prejudice for failure to prosecute, unanimously dismissed, with costs, as taken from nonappealable papers.

In December 2008, trial of this matter was adjourned to January 7, 2009 to accommodate the vacation plans of plaintiff's trial counsel. Several days later, plaintiff brought an order to show cause to remove the case from the trial calendar in order to permit amendment of her expert's report to assert an additional basis of liability. The motion was heard by Supreme Court (Judith J. Gische, J.) and denied in an order entered January 14, 2009. The unsigned transcript of the proceedings, reciting that it "constitutes the decision and order of the Court," was not filed until January 12, 2010.

After appearing before Justice Gische, the parties proceeded to the trial part, where plaintiff sought adjournment on the ground that trial counsel was on trial in another matter. After JHO Gammerman indicated his acquiescence to the extent of adjourning trial for a few days, plaintiff's counsel requested that the court go off the record. When the proceedings resumed, JHO Gammerman ruled that it was dismissing the matter for failure to prosecute, stating that "it is a dismissal with prejudice, and the Clerk is directed to enter appropriate judgment." The transcript of these proceedings, likewise unsigned, was also not entered until January 12, 2010.

The ruling sought to be reviewed on this appeal is indeterminate. The notice of appeal dated January 13, 2010 recites that the appeal is taken "from the order of [Supreme] Court duly entered in the office of the Clerk on January 12, 2010." While the notice fails to specify the individual judge or judicial hearing officer, plaintiff's pre-argument statement (McKinney's NY Rules of Court [22 NYCRR] § 600.17[a]) identifies the ruling appealed from as that of Justice Gische. Finally, plaintiff's brief designates the question to be decided as whether the trial court committed an abuse of discretion in denying the motion to mark the matter off the trial calendar, leading to an order dismissing the case, and concludes that "the orders [sic] appealed from should be reversed."

Although the transcript of proceedings before JHO Gammerman indicates that, upon signing, it may be presented to the Clerk for entry of judgment, it is not signed and no subsequent proceedings are reflected in the record. Particularly, there is no indication that judgment was ever entered.

Neither of the decisions filed on January 12, 2010 constitutes an appealable paper (CPLR 5512[a]), and this appeal must be dismissed for lack of jurisdiction (Matter of Grosso v Slade, 179 AD2d 585, 586 [1992]). The ruling by Justice Gische was reduced to a short-form order duly entered on January 14, 2009 (CPLR 2219[a]) but not appealed from. The JHO's decision was never presented for signature by a Supreme Court Justice, and there is no record of any judgment having been entered thereon from which an appeal could be taken.

Singh v Lincoln Mgt., LLC, 2011 NY Slip Op 06484 (2nd Dept., 2011)

The appeal by the plaintiff from the order must be dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8[c], [e]). The appeal by the defendants third-party plaintiffs from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal by the defendants third-party plaintiffs from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

However, the appeal by the defendants third-party plaintiffs from the judgment must be dismissed, as they are not aggrieved thereby. They received all the relief sought by them on their cross motion for summary judgment dismissing the complaint, the third-party defendant's renewed motion for summary judgment dismissing the third-party complaint was denied as academic, and the third-party complaint has not been dismissed by the Supreme Court (see CPLR 5511). That the order brought up for review on the appeal from the judgment may contain language or reasoning which the defendants third-party plaintiffs deem adverse to their interests does not furnish them with a basis for taking an appeal (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473).

Deller v Mercy Med. Ctr., 2011 NY Slip Op 06365 (2nd Dept., 2011)

As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). The plaintiff appealed from a judgment entered January 12, 2009, which upon, inter alia, an order of the Supreme Court, Nassau County, entered October 4, 2005, denying the plaintiff's motion to restore the action to the trial calendar, dismissed the complaint pursuant to CPLR 3404. That appeal was dismissed by decision and order on motion of this Court dated August 4, 2010, for failure to perfect in accordance with the rules of this Court, and that dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed on that appeal (see Bray v Cox, 38 NY2d at 355). Under the circumstances of this case, we decline to exercise our discretion to determine the merits of the instant appeal from the amended judgment, which raises the same issues as could have been raised on the prior appeal (see Bray v Cox, 38 NY2d 350; Graziano v Graziano, 66 AD3d 835; Blue Chip Mtge. Corp. v Stumpf, 50 AD3d 936; Matter of Talt v Murphy, 35 AD3d 486; Hepner v New York City Tr. Auth., 27 AD3d 418).

CPLR 5513 5701 5526 3212b 5501

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

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

CPLR R. 5526 Content and form of record on appeal

CPLR § 5501 Scope of review

CPLR R. 3212 Motion for summary judgment

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

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

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

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

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

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

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

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

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

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

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

Moot?

E-Z Eating 41 Corp. v H.E. Newport L.L.C., 2011 NY Slip Op 03652 (App. Div., 1st 2011)

Given that the time to cure the alleged lease default has expired, and that the E-Z Eating 41 Corp. has surrendered possession of the premises, the orders appealed are presently moot (see Matter of Johnson v Pataki, 91 NY2d 214, 222 [1997]; cf. Automated Ticket Sys., Ltd. v Quinn, 90 AD2d 738, 739 [1982] [dismissing claims for declaratory relief relating to contract; "[t]he contract having expired, all of the rights asserted by plaintiff against defendants have accrued, and plaintiff should seek its remedy in an action at law for damages"] [internal quotation marks omitted]). In addition, there is no indication that the appeal should be excepted from the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

While the general rule in New York is to simply dismiss an appeal which has been rendered moot, vacatur of an order or judgment on appeal has, in circumstances such as those presented here, been held to be an appropriate exercise of discretion where necessary " in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent'" (see Funderburke v New York State Dept. of Civ. Serv., 49 AD3d 809, 811 [2008], quoting Matter of Hearst Corp. v Clyne, 50 NY2d at 718).

There is a long dissent.

The perils of social networking and other discovery issues

In this case, nothing came of it, but it remains dangerous to those who are unaware.  Turk wrote about it too.

CPLR § 3101 Scope of disclosure

Abrams v Pecile. 2011 NY Slip Op 03108 (App. Div., 1st 2011)

In this action for, among other things, conversion and intentional infliction of emotional distress, plaintiff alleges that defendant, a former employee of plaintiff's husband, retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleges that defendant refused to return the CD and photographs unless plaintiff's husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff's husband and his brother.

Supreme Court improvidently exercised its discretion in ordering plaintiff to comply with the outstanding discovery demands. With respect to defendant's demand for access to plaintiff's social networking accounts, no showing has been made that "the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Vyas v Campbell, 4 AD3d 417, 418 [2004][internal quotation marks and citation omitted]; see also McCann v Harleysville Ins. Co. of N.Y., 78 AD3d 1524, 1525 [2010]). Because plaintiff admits that she has copies of the photographs contained on the subject CD, defendant has also failed to show that she needs access to plaintiff's hard drive in order to defeat plaintiff's conversion claim. Nor has defendant shown that broad discovery concerning plaintiff's finances, education, immigration status, and educational background is "material and necessary" (CPLR 3101[a]).

With respect to defendant's demand for materials prepared in anticipation of litigation, defendant has failed to show "substantial need" for the materials or that she is "unable without undue hardship to obtain the substantial equivalent of the materials by other means" (Santariga v McCann, 161 AD2d 320, 321-322 [1990]; see CPLR 3101[d][2]). Further, defendant is not entitled to privileged communications between plaintiff and her prior counsel (see CPLR 4503[a]).

Discovery of materials concerning plaintiff's family and her husband's business should be obtained through nonparty discovery pursuant to CPLR 3101(a)(4).

Defendant's remaining discovery demands are either overbroad or irrelevant.

JFK Family Ltd. Partnership v Millbrae Natural Gas Dev. Fund 2005, L.P., 2011 NY Slip Op 03211 (App. Div., 2nd 2011)

No appeal lies as of right from an order denying an application to direct a witness to respond to questions posed during the course of a deposition (see McGuire v Zarlengo, 250 AD2d 823, 824; Mann v Alvarez, 242 AD2d 318, 320). However, this Court may deem the plaintiffs' notice of appeal from such an order to be an application for leave to appeal, and grant leave to appeal (see McGuire v Zarlengo, 250 AD2d at 824; Mann v Alvarez, 242 AD2d at 320), and we do so here. 

CPLR 3101(a) requires, in pertinent part, "full disclosure of all matter material and necessary in the prosecution or defense of an action." Generally, CPLR 3101 is to be construed liberally in favor of disclosure, so long as the information sought meets the test of "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406, 406-407; see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69-70). However, the principle of "full disclosure" does not give a party the right to uncontrolled and unfettered disclosure (see Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531). Moreover, the Supreme Court has broad discretion over the supervision of disclosure, and its determination will not be disturbed absent an improvident exercise of that discretion (Spodek v Neiss, 70 AD3d 810, 810; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694, 695; Cabellero v City of New York, 48 AD3d 727, 728; Gilman & Ciocia, Inc. v Walsh, 45 AD3d at 531). Under the circumstances of this case, the Supreme Court's denial of those branches of the plaintiffs' motion pursuant to CPLR 3216 which were to compel the defendants to disclose certain documentary evidence and its grant of those branches of the defendants' cross motion which were for a protective and confidentiality order as to certain evidence sought through discovery, were provident exercises of its discretion.

The plaintiffs' remaining contentions, including those referable to their application to compel deposition witnesses to respond to certain questions, are without merit.

Taylor v New York City Hous. Auth., 2011 NY Slip Op 03229 (App. Div., 2nd 2011)

"[N]o appeal as of right lies from an order directing a party to answer questions propounded at an examination before trial" (Nappi v North Shore Univ. Hosp., 31 AD3d 509, 510-511 see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69). An order deciding "a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and as such is not appealable as of right even where it was made upon a full record and on the defendant's motion to compel responses" (Singh v Villford Realty Corp., 21 AD3d 892, 893 [citations omitted]; see Daniels v Fairfield Presidential Mgt. Corp., 43 AD3d 386, 387; Cedrone v Bon Secours Community Hosp., 31 AD3d 596). The plaintiffs have not sought leave to appeal, and there is nothing in the record that would warrant granting leave to appeal on the Court's own motion (see Daniels v Fairfield Presidential Mgt. Corp., 43 AD3d at 387).

W&W Glass, LLC v 1113 York Ave. Realty Co. LLC, 2011 NY Slip Op 02786 (App. Div., 1st 2011)

 

The record fails to support the motion court's determination that defendants' failure to comply with discovery obligations was willful, or in bad faith (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [2010]; Banner v New York City Hous. Auth., 73 AD3d 502 [2010]. Absent such showing, the motion court erred in imposing the "harshest available penalty" against defendants (see Basset v Bando Sangsa Co., 103 AD2d 728, 728 [1984]).

Finally, we note that the record discloses no evidence of defendants' repeated failures to comply with the court's discovery orders. Indeed, there appear to be no prior motions by plaintiff to compel disclosure, rendering any motion to strike the answer pursuant to CPLR 3126 premature in this case.

The bold is mine.

Notice of appeal limits review

State Farm Mut. Auto. Ins. Cos. v Jaenecke, 2011 NY Slip Op 01219 (App. Div., 4th 2011)

Plaintiff commenced this action seeking a declaration that it is not obligated to defend or indemnify Zachary J. Jaenecke and Peter J. Jaenecke (defendants) in the underlying personal injury action commenced by defendants Gary L. Coons and Ann M. Coons. We note at the outset that the challenge by defendants to that part of the order and judgment declaring that "any bodily injury or damage to Gary L. Coons and Ann M. Coons was not caused by an accident resulting from the ownership, maintenance or use of the Jaenecke vehicle" is not properly before us. "An appeal from only part of an order [and judgment] constitutes a waiver of the right to appeal from other parts [thereof]" (Johnson v Transportation Group, Inc., 27 AD3d 1135, 1135). Here, defendants limited their notice of appeal to that part of the order and judgment denying their motion during trial seeking a declaration that plaintiff was obligated to defend and indemnify them based on plaintiff's alleged failure to comply with Insurance Law § 3420 (d), and thus our review is limited to that issue (see Matter of Violet Realty, Inc. v City of Buffalo Planning Bd., 20 AD3d 901, 903-904, lv denied 5 NY3d 713). We conclude that Supreme Court properly denied the motion and determined that plaintiff "was not required by Insurance Law § 3420 (d) to issue a disclaimer in a timely fashion because its denial of coverage was based upon a lack of coverage and not a policy exclusion" (Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699).

“evidentiary rulings which, even when made in advance of trial on motion papers, are not appealable, either as of right or by permission”

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

Rosenfeld v Baker, 2010 NY Slip Op 08087 (App. Div., 2nd 2010)

The appeal from the order dated September 8, 2008, must be dismissed because the portions of the order appealed from concern evidentiary rulings which, even when made in advance of trial on motion papers, are not appealable, either as of right or by permission (seeCPLR 5701; Barnes v Paulin, 52 AD3d 754; Citlak v Nassau County Med. Ctr., 37 AD3d 640; Cotgreave v Public Adm'r of Imperial County [Cal], 91 AD2d 600, 601). The issues raised on the appeal from the order dated September 8, 2008, are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]). The appeal from the order dated January 12, 2009, must be dismissed, as no appeal lies from an order denying reargument.

Contrary to the plaintiff's contention, the defendants' medical experts were properly permitted to testify at trial, inter alia, based upon their review of the plaintiff's medical records (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139). The fact that the defendants' psychiatric expert did not examine the plaintiff goes only to the weight of his testimony, not to its admissibility (see Weigert v Baker, 217 AD2d 1011).