Motion to strike. Motion to quash

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3101 Scope of disclosure

Jacobs v Johnston, 2012 NY Slip Op 05390 (2nd Dept. 2012)

Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21(e), and clearly demonstrated that the case was not ready for trial, that branch of the defendant's motion which was to vacate the note of issue and, in effect, to compel the deposition of a nonparty witness should have been granted (see CPLR 2103[b][2]; Gallo v SCG Select Carrier Group, L.P., 91 AD3d 714; Tirado v Miller, 75 AD3d 153, 157). Furthermore, since the defendant timely moved to vacate the note of issue, he was required only to demonstrate why the case was not ready for trial, and was not required to establish that additional discovery was necessary because unusual or unanticipated circumstances had developed subsequent to the filing of the note of issue (see 22 NYCRR 202.21[d], [e]; Mosley v Flavius, 13 AD3d 346; Rizzo v DeSimone, 287 AD2d 609, 610; Perla v Wilson, 287 AD2d 606; Audiovox Corp. v Benyamini, 265 AD2d 135, 139).

In opposition to the plaintiff's cross motion to quash the subpoena served by the defendant upon the nonparty witness, the defendant demonstrated, inter alia, that the disclosure sought was relevant, material, and necessary to the defense of the action (see CPLR 3101[a][4]; Kondratick v Orthodox Church in Am., 73 AD3d 708, 709; Tenore v Tenore, 45 AD3d 571, 571-572; [*2]Thorson v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper, Inc., 249 AD2d 374). Contrary to the plaintiff's contention, the defendant did not waive his right to seek discovery from the nonparty witness by failing to raise an objection with respect thereto at the certification conference. Since the identity of the nonparty witness was not made known to the defendant until after the date of the certification conference, and the defendant timely moved to vacate the note of issue, the defendant could not be deemed to have waived his right to compel the nonparty witness to comply with the subpoena and to appear for a deposition (cf. Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544; James v New York City Tr. Auth., 294 AD2d 471, 472). Accordingly, the plaintiff's cross motion to quash the subpoena should have been denied.

 

Stipulations

CPLR R. 2104 Stipulations

Florimon v Xianglin Xu, 2012 NY Slip Op 05388 (2nd Dept. 2012)

On November 27, 2007, the day of trial, the attorneys for both parties drafted a stipulation of settlement. The stipulation changed certain portions of the contract of sale, including increasing the purchase price from $380,000 to $403,500, and provided that the closing was to take place within 45 days from the signing of the agreement. The stipulation provided that it was not binding until it was executed by one of the defendants.

On December 3, 2007, the defendants returned the signed stipulation of settlement to the plaintiff with two handwritten modifications. Upon receipt of the stipulation, the plaintiff informed the defendants that he did not consent to the modifications and requested that the defendants "forward an original signed stipulation . . . at [their] earliest convenience." The plaintiff contended that the defendants never returned to him the original stipulation without the modifications. The defendants dispute this contention.

Thereafter, the defendants sought to enforce the unmodified stipulation drafted by the parties' attorneys on November 27, 2007, and the plaintiff opposed the motion. In the order appealed from, the Supreme Court denied the defendants' motion, inter alia, to enforce the unmodified stipulation on the ground that it was not binding, and granted the plaintiff's cross motion pursuant to CPLR 3025 for leave to amend the complaint to add a cause of action for the return of a down payment. Upon the order, and after a nonjury trial, judgment was entered in favor of the plaintiff and against the defendants. The defendants appeal and we reverse the judgment.

The record demonstrates that an unmodified version of the stipulation of settlement was executed by one of the defendants. Contrary to the plaintiff's argument, whether the unmodified stipulation was delivered to the plaintiff was irrelevant, as there was no requirement obligating the defendants to physically deliver the stipulation to the plaintiff in order to enforce it (see Morgan Servs., Inc. v Abrams, 21 AD3d 1284, 1285; Bohlen Indus. of N. Am. v Flint Oil & Gas, 106 AD2d 909, 910; Birch v McNall, 19 AD2d 850, 850; cf. Brois v DeLuca, 154 AD2d 417). Thus, the unmodified stipulation was binding, and that branch of the defendants' motion which was to enforce the unmodified stipulation should have been granted.

3012(b) failure to serve a complaint. 105(u). 2005.

CPLR § 3012 Service of pleadings and demand for complaint
(b) Service of complaint where summons served without complaint

CPLR § 105 Definitions
(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

CPLR § 2005 Excusable delay or default

Mitrani Plasterers Co., Inc. v SCG Contr. Corp., 2012 NY Slip Op 05398 (2nd Dept. 2012)

To avoid dismissal of the action for failure to serve a complaint after a demand therefor has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Perez-Faringer v Heilman, 79 AD3d 837, 838; Gibbons v Court Officers' Benevolent Assn. of Nassau County, 78 AD3d 654, 654; Pristavec v Galligan, 32 AD3d 834, 834). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court (see Pristavec v Galligan, 32 AD3d at 834-835). When exercising its discretion in this regard, a court should consider all relevant factors, including the extent of the delay, the prejudice to the opposing party, and the lack of an intent to abandon the action (see Grace v Follini, 80 AD3d 560, 560-561; Aquilar v Nassau Health Care Corp., 40 AD3d 788, 789; Harcztark v Drive Variety, Inc., 21 AD3d 876).

The excuse of law office failure proffered by the plaintiff's attorney was reasonable under the circumstances of this case, given the length of the delay, the lack of prejudice to the defendant, the plaintiff's active participation in a related proceeding brought by the defendant against the plaintiff, and the plaintiff's lack of intent to abandon the action (see CPLR 2005; Aquilar v Nassau Health Care Corp., 40 AD3d at 789; Orwell Bldg. Corp. v Bessaha, 5 AD3d 573, 574-575). Furthermore, the plaintiff adequately demonstrated the potential merit of its action by attaching a detailed verified complaint and an affidavit from its officer (see CPLR 105[u]; Pristavec v Galligan, 32 AD3d at 835). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion to dismiss the action and in granting the plaintiff's cross motion to compel acceptance of the untimely complaint.

Dayan v Darche, 2012 NY Slip Op 04312 (2nd Dept. 2012)

To avoid dismissal of the action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Perez-Faringer v Heilman, 79 AD3d 837, 838; Gibbons v Court Officers' Benevolent Assn. of Nassau County, 78 AD3d 654, 654; Pristavec v Galligan, 32 AD3d 834, 834; Maldonado v Suffolk County, 23 AD3d 353, 353-354). Here, the plaintiff failed to proffer any excuse for her lengthy delay in serving the complaint. Furthermore, she failed to establish that she had a potentially meritorious cause of action (see generally Rosner v Paley, 65 NY2d 736, 738; Allen v Potruch, 282 AD2d 484, 484-485; Iannacone v Weidman, 273 AD2d 275, 276-277; Rubinberg v Walker, 252 AD2d 466, 467). Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the action.

In addition, the plaintiff's motion for leave to renew her opposition to the defendant's motion to dismiss the action was properly denied. In support of her motion, the plaintiff proffered her attorney's affirmation in an attempt to provide a reasonable excuse for the delay in serving the complaint. However, the attorney's affirmation, which, inter alia, proffered an unsubstantiated excuse of disabling illnesses, was insufficient to warrant a change of the prior determination (see CPLR 2221[e][2]; Cynan Sheetmetal Prods., Inc. v B.R. Fries & Assoc., Inc., 83 AD3d 645, 646; Mattera v Capric, 54 AD3d 827, 828; Borgia v Interboro Gen. Hosp., 90 AD2d 531, affd 59 NY2d 802; Wolfe v Town of Hempstead, Dept. of Parks & Recreation, 75 AD2d 811, 812). Moreover, the plaintiff failed to offer a reasonable justification for failing to present this affirmation in opposition to the defendant's original motion (see CPLR 2221[e][3]; Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d 510, 512; Zarecki & Assoc., LLC v Ross, 50 AD3d 679, 680; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533).

Discovery of claims file CPLR 3101

CPLR § 3101 Scope of disclosure

Ural v Encompass Ins. Co. of Am, 2012 NY Slip Op 05407 (2nd Dept. 2012)

With respect to the parties' discovery issues, CPLR 3101(a) broadly mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." This provision is liberally interpreted in favor of disclosure (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; Matter of Skolinsky, 70 AD3d 845; Riverside Capital Advisors, Inc. v First Secured Capital Corp., 292 AD2d 515). However, the discovery sought must be relevant to the issues at bar, with the test employed being "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d at 406). Regarding an entire set of discovery demands which are "palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621). "The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one" (id. at 621 [internal quotation marks omitted]).

Here, the plaintiff's discovery demands included production of Encompass's entire claim file for the subject water damage. The plaintiff asserts that Encompass only produced part of the claim file. In response, Encompass asserts that it withheld only those parts of the claim file that were produced in anticipation of litigation and thus were protected by work product privilege (see Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370). However, the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery (see Koump v Smith, 25 NY2d 287, 294) by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation (see Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402). Here, Encompass's attorney's conclusory assertions were insufficient to satisfy this burden (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648; see also Agovino v Taco Bell 5083, 225 AD2d 569). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to compel Encompass to produce the documents contained in the plaintiff's claim file to the extent of directing Encompass to provide the Supreme Court with a detailed privilege log (see CPLR 3122; Clark v Clark, 93 AD3d 812), and the matter must be remitted to the Supreme Court, Nassau County, for an in camera review of the allegedly privileged documents.

Although Encompass also failed to meet its burden of demonstrating that certain discovery demands involved undiscoverable trade secrets (see Hunt v Odd Job Trading, 44 AD3d 714, 716), aside from the claim file, the remaining discovery demands were nevertheless palpably improper in that they were overbroad, lacked specificity, or sought irrelevant information. Accordingly, the Supreme Court correctly denied that branch of the plaintiff's motion which was to compel Encompass to comply with these discovery demands (see Bell v Cobble Hill Health Ctr., Inc., 22 AD3d at 621).

Under the circumstances of this case, Encompass was not entitled to a protective order (see CPLR 3103).

Interesting CPLR 5015(a)(4)

CPLR R. 5015 Relief from judgment or order
(a) On motion
(4) lack of jurisdiction to render the judgment or order

Pavlou v Associates Food Stores, Inc., 2012 NY Slip Op 04982 (2nd Dept. 2012)

In an order entered April 21, 2010, the Supreme Court, sua sponte, dismissed this action pursuant to 22 NYCRR 202.27 on the ground that the plaintiffs failed "to proceed as directed by the court" when they did not appear on a scheduled court date. The plaintiffs demonstrated that they did not have notice of the trial calendar call of the action through the uncontroverted affidavit of their attorney, which stated that counsel did not receive any notice for a court appearance (see M.S. Hi-Tech, Inc. v Thompson, 23 AD3d 442, 443). Without notice of the court appearance, the plaintiffs' default was a nullity, as was the remedy imposed by the Supreme Court as a consequence (see CPLR 5015[a][4]; Bonik v Tarrabocchia, 78 AD3d 630, 632; Tragni v Tragni, 21 AD3d 1084, 1085; Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376). In this situation, vacatur of the default was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required (see Bonik v Tarrabocchia, 78 AD3d at 632; Pelaez v Westchester Med. Ctr., 15 AD3d at 376; Kumer v Passafiume, 258 AD2d 625, 626). Accordingly, the plaintiffs' motion, in effect, to vacate the order entered April 21, 2010, sua sponte, dismissing the action, and to restore the action to the trial calendar should have been granted.

Discovery in aid of arb CPLR 3102(c)

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

Matter of Matter of Progressive N. Ins. Co. v Foss, 2012 NY Slip Op 04757 (2nd Dept. 2012)

The petitioner commenced this proceeding to temporarily stay arbitration of a claim for supplementary uninsured/underinsured motorist (hereinafter SUM) benefits pending the completion of certain discovery permitted by the subject insurance policy. The Supreme Court improvidently exercised its discretion in granting the petition to the extent of staying the arbitration pending the completion of certain discovery, and denying the appellants' motion to dismiss the petition. The petitioner had ample time to seek the desired discovery before commencing the proceeding, and unjustifiably failed to do so (see Matter of Government Empls. Ins. Co. v Mendoza, 69 AD3d 623, 624-625; Matter of State-Wide Ins. Co. v Womble, 25 AD3d 713, 713-714; Matter of New York Cent. Mut. Fire Ins. Co. v Gershovich, 1 AD3d 364, 365; Matter of Government Empls. Ins. Co. v Rosenfarb, 306 AD2d 478, 478-479).

 

Matter of Progressive Specialty Ins. Co. v Alexis, 90 AD3d 933 (2nd Dept., 2011)

The Supreme Court properly denied that branch of the petition which was to direct disclosure in aid of arbitration pursuant to CPLR 3102 (c), as the petitioner failed to demonstrate that "extraordinary circumstances" existed such that this relief would be absolutely necessary for the protection of its rights (De Sapio v Kohlmeyer, 35 NY2d 402, 406 [1974] [internal quotation marks omitted]; see Matter of Government Empls. Ins. Co. v Morris, 83 AD3d 709, 710 [2011]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 73 AD3d 791, 791-792 [2010]).

4404(b) and 5015(a)(2) newly discovered evidence

CPLR  R. 4404 Post-trial motion for judgment and new trial

CPLR R. 5015 Relief from judgment or order

Da Silva v Savo, 2012 NY Slip Op 05383 (2nd Dept. 2012)

Pursuant to CPLR 4404(b), after a trial not triable as of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision and issue a new decision based on, inter alia, newly-discovered evidence (see Matter of Torregroza v Gomez, 85 AD3d 932, 933; Stambaugh v Stambaugh, 226 AD2d 363; Grossbaum v Dil-Hill Realty Corp., 58 AD2d 593, 594). Pursuant to CPLR 5015(a), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: . . . 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404." In order for relief to be granted under CPLR 4404(b) or 5015(a)(2) based on newly-discovered evidence, the movant must show that it could not have previously discovered the evidence (see Matter of Torregroza v Gomez, 85 AD3d at 933; Stambaugh v Stambaugh, 226 AD2d at 363), and that the new evidence is in admissible form (see Sofio v Hughes, 148 AD2d 439, 440).

Here, the Supreme Court erred in granting that branch of the defendants' motion which was to set aside so much of its decision after trial as determined that the plaintiff was entitled  to an award of damages in the principal sum of $125,000 for undistributed profits. The defendants failed to show that they could not have previously discovered the documents that were submitted in support of their motion. Further, those documents were incomplete and consisted of hearsay, and thus were not in admissible form. Under these circumstances, the Supreme Court erred in setting aside the $125,000 damages award for undistributed profits based on the documents submitted in support of the defendants' motion (see Stambaugh v Stambaugh, 226 AD2d at 363; see also Sofio v Hughes, 148 AD2d at 440-441).

 

Experts: reports relied on unattached = report has no probative value

Meteorologist

Cotter v Brookhaven Mem. Hosp. Med. Ctr., Inc., 2012 NY Slip Op 05382 (2nd Dept. 2012)

Here, the defendant property owner failed to establish, prima facie, that it was entitled to judgment as a matter of law dismissing the complaint based on the storm in progress rule. In support of its motion, the defendant submitted an affirmed report of a meteorologist who opined that a storm was in progress at the time the plaintiff allegedly slipped and fell on ice. However, copies of the records upon which the meteorologist relied in forming his opinion were not attached to the report, and thus, the report has no probative value (see Diaz v New York Downtown Hosp., 99 NY2d 542; Romano v Stanley, 90 NY2d 444, 451; Daniels v Meyers, 50 AD3d 1613; Schuster v Dukarm, 38 AD3d 1358). To meet its prima facie burden, the defendant could not rely on its submission of such records for the first time in its reply papers (see David v Byron, 56 AD3d 413, 414-415; Rengifo v City of New York, 7 AD3d 773; Voytek Tech. v Rapid Access Consulting, 279 AD2d 470, 471).

Tricked into coming to NY for service?

CPLR § 308 Personal service upon a natural person

(1) by delivering the summons within the state to the person to be served

Dantin v Masi, 2012 NY Slip Op 03399 (2nd Dept., 2012)

Contrary to the defendant's contention, the Supreme Court properly denied, without a hearing, his motion to dismiss the complaint for lack of personal jurisdiction. The plaintiff demonstrated that jurisdiction was acquired over the defendant by personal delivery of a copy of the summons and complaint to him while he was physically present in New York (see CPLR 308[1]). Moreover, accepting as true the defendant's factual allegations regarding the circumstances under which he was served with process, we conclude that he failed to raise any issue regarding whether he was lured, enticed, or induced into entering New York by fraudulent or deceptive conduct on the part of the plaintiff for the purpose of effecting service. Therefore, a hearing on the validity of the service is unwarranted (see Matter of Hammett v Hammett, 74 AD2d 540; United Indus. Corp. v Shreiber, 51 AD2d 688, cert denied 429 US 1023; Gumperz v Hofmann, 245 App Div 622, affd 271 NY 544; cf. DeMartino v Rivera, 148 AD2d 568; Terlizzi v Brodie, 38 AD2d 762).

3212(a) Filed when received, not necessarily stamped

3212(a)

Tafsiou v Arms Acres, 2012 NY Slip Op 03629 (2nd Dept., 2012)

The defendant contends that the Supreme Court erred in denying its motion for summary judgment dismissing the complaint solely upon the ground that the motion was untimely. We agree. In an order dated November 9, 2010, the Supreme Court extended the defendant's "time to file" a summary judgment motion by 60 days. This 60-day extension expired on January 8, 2011, which was a Saturday. Accordingly, pursuant to Judiciary Law § 282, the defendant had until Monday, January 10, 2011, to file its motion for summary judgment dismissing the complaint. On that date, the defendant's motion papers were received and marked "approved" by the Kings County Supreme Court Motion Support Office, the office with which they were required to be filed (see Kings County Supreme Court Uniform Civil Term Rules, Part A). "Papers that are required to be filed are considered to have been filed when they are received by the office with which, or by the official with whom, they are to be filed" (Castro v Homsun Corp., 34 AD3d 616, 617; Coty v County of Clinton, 42 AD3d 612, 613-614 [internal quotation marks omitted]). Thus, the defendant's motion papers were timely filed when received by the Motion Support Office on January 10, 2011, despite the fact that they were not stamped "filed" by the Kings County Clerk until the following day, January 11, 2011. Accordingly, the matter must be remitted to the Supreme Court, Kings County, to determine the defendant's motion on the merits.