This is by far the best CLE I have ever attended.1 
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This is by far the best CLE I have ever attended.1
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Clove Lakes' failure to make a prima facie showing required the denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Clove Lakes' prima facie burden cannot be met by evidence submitted for the first time in its reply papers (see David v Bryon, 56 AD3d 413; Barrera v MTA Long Is. Bus, 52 AD3d 446).
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). In support of their motion, the defendants relied upon, inter alia, the report of an orthopedic surgeon who examined the plaintiff. The report was without any probative value since he failed to affirm the contents of his report under the penalties of perjury, as required by CPLR 2106 (see Magro v He Yin Huang, 8 AD3d 245; Slavin v Associates Leasing, 273 AD2d 372; Baron v Murray, 268 AD2d 495; Cwiekala v Siddon, 267 AD2d 193). Without the report, the defendants could not meet their burden on the motion.
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d 524; Coscia v 938 Trading Corp., 283 AD2d 538).
In 2007, after relations between the parties had deteriorated and the tenant brought an action against two of the landlords' principals, the landlords commenced this action alleging that, among other things, the tenant had breached the parties' agreements by failing to pay percentage rents for the three stores. The tenant answered that the memorandum had terminated its obligation to pay percentage rents for those stores and served a subpoena for the records of the landlords' bank. When the landlords moved to quash the subpoena, the tenant cross-moved for summary judgment dismissing the cause of action.
Finding the memorandum to be ambiguous as to whether the tenant was obligated to pay percentage rents for the three stores, Supreme Court denied the tenant's cross motion and partially denied the landlords' motion to quash by greatly narrowing the scope of the tenant's subpoena. The landlords then moved to renew the motion to quash the subpoena in its entirety and attempted to present a further "Global Lease Agreement" in support of its position. That motion also was denied. The landlords now appeal from Supreme Court's orders, contending that the memorandum is not ambiguous since it is silent as to percentage rents for the three stores and, therefore, the lease terms regarding percentage rents remain unchanged. The landlords argue that, in the absence of any ambiguity, the information sought by the tenant's subpoena is extrinsic evidence that cannot be considered in construing the memorandum.
There can be no real dispute that the tenant's subpoena seeks extrinsic evidence. Inasmuch as extrinsic evidence of the parties' intent may be considered only if their agreement is ambiguous (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]), the landlords' motion to quash necessarily depends upon whether the memorandum is ambiguous. It is well settled that "[w]hether or not a writing is ambiguous is a question of law to be resolved by the courts" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). In addition, while "silence does not equate to contractual ambiguity" (Greenfield v Philles Records, 98 NY2d at 573; see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]), an omission as to a material issue can create an ambiguity and allow the use of extrinsic evidence where the context within the document's four corners suggests that the parties intended a result not expressly stated (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d 495, 500 [2004]; Barrow v Lawrence United Corp., 146 AD2d 15, 18-19 [1989]).
***Inasmuch as the memorandum can be read as providing either a new, increased single rent term that replaced the prior base and percentage rents for the three stores, as the tenant claims, or new, increased base rents in addition to the existing percentage rents, as the landlords claim, it is ambiguous. In view of the questions raised by the memorandum's inconsistent treatment of these two groups of stores, unexplained within its four corners, Supreme Court properly determined that extrinsic evidence is needed to determine the parties' intent in executing it (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d at 500; Belknap v Witter & Co., 61 NY2d 802, 804 [1984], affg 92 AD2d 515 [1983]; State of New York v Industrial Site Servs., Inc., 52 AD3d 1153, 1156 [2008]; Barrow v Lawrence United Corp., 146 AD2d at 18).
Given that ruling, Supreme Court also did not abuse its discretion in permitting disclosure of the landlords' records held by a nonparty to the extent that they could reveal the parties' intent in executing the memorandum. The tenant sufficiently demonstrated that the information which it sought was material and necessary. Further, the court carefully limited the scope of disclosure to shield confidential financial information, making it unnecessary for the tenant to show that the information is indispensable (see generally Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]; Jordan v Blue Circle Atl., 296 AD2d 752, 752-753 [2002]; cf. Saratoga Harness Racing v Roemer, 274 AD2d 887, 889 [2000]).
Finally, in light of the landlords' failure to adequately explain the omission of the Global Lease Agreement from their submission on the parties' initial motions, Supreme Court did not abuse its discretion by denying the motion to renew (see Matter of Mouawad, 61 AD3d 1169, 1169-1170 [2009]; Kahn v Levy, 52 AD3d 928, 929 [2008]).
Almost on topic is a more recent decision: Gitlin v Chirinkin, 2010 NY Slip Op 01920 (App. Div., 2nd, 2010)
The Supreme Court did not improvidently exercise its discretion in denying that branch of the appellants' motion which was to compel the plaintiff to disclose his tax returns and bank records. The appellants failed to demonstrate that any information in the tax returns was indispensable to their defense or counterclaim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637; Latture v Smith, 304 AD2d 534, 536; see also Banigan v Hill, 57 AD3d 463; Benfeld v Fleming Props., LLC, 44 AD3d 599). Moreover, the appellants failed to demonstrate that the plaintiff's bank records were material and necessary to their defense or counterclaim (see CPLR 3101[a]; Auerbach v Klein, 30 AD3d 451).
The plaintiff sustained his burden of demonstrating that the appellants should be required to disclose their tax returns (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997). In addition, the plaintiff also clearly demonstrated that the bank records he requested of the appellants were material and necessary to the pursuit of his claims that the defendants had defrauded him. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was for a protective order pursuant to CPLR 3103.
Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability and pursuant to CPLR 3126 to strike the answer insofar as asserted on behalf of Kowalski, based upon Kowalski's failure to appear for a court-ordered deposition.***
"Although actions should be resolved on the merits whenever possible, where the conduct of the resisting party is shown to be willful and contumacious, the striking of a pleading is warranted" (Savin v Brooklyn Mar. Park. Dev. Corp., 61 AD3d 954, 954). Here, the Supreme Court providently exercised its discretion in striking the answer insofar as asserted on behalf of Kowalski. The record reflects that the answer was interposed on behalf of both defendants, and that Kowalski did not raise any defenses based upon lack of personal jurisdiction. In opposition to that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of Kowalski, defense counsel represented that his office was unable to locate Kowalski and, therefore, could not produce him for a deposition. The mere fact that Kowalski may have been outside the State of New York, and had made himself unavailable, did not preclude the Supreme Court from striking the answer [*2]insofar as interposed by him for failure to appear at a court-ordered deposition (see Carabello v Luna, 49 AD3d 679, 680; Maignan v Nahar, 37 AD3d 557).
The bold is mine.
Hernandez v Willoughby Walk Apts. Corp., 2010 NY Slip Op 01923 (App. Div., 2nd, 2010)
At this juncture, the Supreme Court properly, in effect, denied that branch of the motion of the third-party defendant Rotech Enterprises, Inc. (hereinafter Rotech), which was for summary judgment dismissing the third-party causes of action for contractual indemnification and to recover damages for breach of contract to procure insurance insofar as asserted against it. In this regard, Rotech made its motion prior to the depositions of the parties and while substantial discovery remained outstanding (see Ramos v DEGI Deutsche Gesellschaft Fuer Immobilienfonds MBH, 37 AD3d 802, 803; Great S. Bay Family Med. Practice, LLP v Raynor, 35 AD3d 808, 809-810).
We note that, at the oral argument on the motion, the Supreme Court indicated that the denial thereof was "without prejudice to renew." However, the Supreme Court failed to indicate the [*2]same in the order appealed from. Where there is an inconsistency between an order and the decision upon which it is based, the decision controls (see Matter of Stewart, 65 AD3d 634, 635). Such an inconsistency may be corrected either by way of motion for resettlement or on appeal (see CPLR 5019[a]; Scheuering v Scheuering, 27 AD3d 446, 447). We therefore modify the order accordingly.
Espinal v Jamaica Hosp. Med. Ctr., 2010 NY Slip Op 01917 (App. Div., 2nd, 2010)
The appellants' contention that the plaintiff's expert was unqualified to give an expert opinion because the plaintiff did not provide evidence of his credentials is without merit. The plaintiff's expert established his qualifications by attaching a curriculum vitae demonstrating that he was a board-certified neurologist (see Winney v County of Saratoga, 8 AD3d 944, 945). In any event, the expert's alleged lack of experience is a factor which goes to the weight to be given to his opinion, and not to its admissibility (see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831; Julien v Physician's Hosp., 231 AD2d 678, 680; Ariola v Long, 197 AD2d 605). [*2]
Furthermore, the affidavit of the plaintiff's expert was sufficient to raise a triable issue of fact. "It is well settled that an expert's opinion must be based on facts in the record personally known to the witness, and that the expert may not assume facts not supported by the evidence in order to reach his or her conclusion" (Erbstein v Savasatit, 274 AD2d 445, 446; see Cassano v Hagstrom, 5 NY2d 643, 646; Plainview Water Dist. v Exxon Mobil Corp., 66 AD3d 754, 755). The expert's opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible (see Matott v Ward, 48 NY2d 455, 459-460; Erbstein v Savasatit, 274 AD2d at 446). Contrary to the appellants' contention, the affidavit of the plaintiff's expert was neither so conclusory or speculative, nor without basis in the record, as to render it inadmissible (see Erbstein v Savasatit, 274 AD2d at 446; see also Dandrea v Hertz, 23 AD3d 332, 333). Rather, "[a]ny purported shortcomings in the affidavit went merely to the weight of the opinion" (Erbstein v Savasatit, 274 AD2d at 446). Since the parties offered conflicting expert opinions as to whether the alleged assault exacerbated the injuries the plaintiff sustained in the accident, a question of credibility arises which requires resolution by a jury (see Colao v St. Vincent's Med. Ctr., 65 AD3d 660, 661; Dandrea v Hertz, 23 AD3d at 333; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624).
Fofana v 41 W. 34th St., LLC, 2010 NY Slip Op 01830 (App. Div., 1st, 2010)
On December 3, 2004, Fofana commenced an action against, inter alia, 41 West, GSL, and Winoker, and on February 28, 2006, he commenced a separate action against Midboro. Both actions were filed in Supreme Court, New York County. [*2]
Previously, on August 5, 2004, Haynes had commenced a personal injury action in Supreme Court, Bronx County, against several of the same defendants. Eventually, the Haynes action was consolidated in the Bronx with plaintiff's two New York County actions. Fofana was impleaded as a third-party defendant in the Haynes action.
By notice dated October 5, 2006, the defendants in the Haynes action moved for summary judgment on the grounds, inter alia, that the evidence established that the freight elevator complied with the elevator code in effect when built, and contained no defects at the time of the accident. They contended that the elevator door was caused to be opened by the force of being struck by plaintiff's and Haynes's weight, as the two fought.
On August 17, 2007, the trial court granted the motion, on the ground, inter alia, that there was no evidence that defendants had any notice that the fourth floor hoistway doors had been defective prior to the incident. In an order entered May 19, 2009, this Court upheld the dismissal of the complaint, finding that defendants had made a prima facie showing that the accident was not caused by any defect in the hoistway door (62 AD3d 519, 521 [2009]). In particular, the Court noted that an elevator inspector from the New York City Department of Buildings who had inspected the accident scene within 80 minutes after the accident, found that the sliding panel for the elevator door "was bent and protruded into the hoistway in a manner indicating that a substantial horizontal force had been exerted against the sliding panel" (id. at 520). The Court also observed that the evidence indicated that there had not been any problems with the hoistway doors before the accident occurred (id.).
By notice dated August 31, 2007, two weeks after the trial court granted summary judgment in the Haynes action, the defendants in the Fofana action moved to amend their answers to assert the affirmative defenses of collateral estoppel and res judicata, and, upon the granting of said relief, for dismissal on those grounds pursuant to CPLR 3211(5).
By order entered January 15, 2008, the court granted leave to amend, but denied the motion to dismiss. In so doing, the court found that, as discovery in the Fofana action had not been completed at the time of the Haynes motion, Fofana was not in a position to meaningfully litigate the issues raised on the motion to dismiss.
Subsequently, on February 19, 2008, defendants, who did not appeal from the January 15 order, moved for leave to file a summary judgment motion and, upon the granting of leave, for summary judgment dismissing the complaint. In support of their motion, defendants noted that the Haynes note of issue had been filed on March 7, 2006, while the note of issue in this case was only filed on May 7, 2007. They also observed that the Haynes summary judgment motion had been served on all parties to the action, including Fofana, who was a third-party defendant in that action.
Defendants argued they had a reasonable belief that plaintiff, a party to the Haynes action, would be bound by the Haynes decision, which was dispositive of all the issues herein. Thus, they claimed, they made a motion to dismiss pursuant to CPLR 3211(a)(5), rather than a motion for summary judgment pursuant to CPLR 3212. They aver that this reasonable belief constitutes "good cause" for the delay in moving for summary judgment. In opposition, Fofana argued that defendants failed to show why they could not have sought alternative relief when filing the motion to dismiss, and that the excuse was akin to inexcusable law office failure.
The trial court denied the motion as untimely, finding that the proffered excuse constituted law office failure, with the result that the requisite good cause to entertain the motion had not been shown. The court reasoned that defendants should have recognized that the motion [*3]to dismiss could be denied, and thus the motion for summary judgment should have been made with the prior motion. We reverse.
CPLR 3212(a) provides that the "court may set a date after which no [dispositive] motion may be made," and, "[i]f no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." In Brill v City of New York (2 NY3d 648 [2004]), the Court of Appeals made clear that the statutory deadline should be strictly enforced, in order to prevent the filing of "[e]leventh-hour summary judgment motions," a practice that "ignores statutory law, disrupts trial calendars, and undermines the goals of orderliness and efficiency in state court practice" (id. at 650-651). It concluded that the "good cause" called for by CPLR 3212(a) requires a "satisfactory explanation for the untimeliness - rather than simply permitting meritorious, nonprejudicial filings, however tardy" (id. at 652) (see also Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]). This Court has subsequently observed that "courts may not excuse a late motion, no matter how meritorious, upon a perfunctory claim of law office failure" (Azcona v Salem, 49 AD3d 343, 343 [2008]).
In this case, however, it is undisputed that defendants made a timely motion to dismiss on the grounds of collateral estoppel. Moreover, in defending the "failure" to make a simultaneous motion for summary judgment, they noted that Fofana, as a third-party defendant in the Haynes action, had been served with the motion papers. Regardless of whether he chose to submit papers in opposition to the motion, he was put on notice that the defendants were taking the position that the elevator door was not defective prior to the accident, and that the accident occurred as a result of the force exerted by the weight of the two combatants as they fell against the door. He thus had the opportunity to litigate the issue, and yet declined. Furthermore, since the note of issue had not yet been filed in his own action, Fofana still had the opportunity to pursue further discovery with regard to this defense, in the event such a motion was made in his own case.
Thus, defendants' averment that they had good cause not to file a motion for summary judgment contemporaneously with the motion to dismiss is valid. The disposition of the Haynes summary judgment motion provided sufficient grounds either to invoke collateral estoppel or to dismiss the Fofana case. The conditions for the applicability of collateral estoppel are an identity of issue which has been necessarily decided in the prior action and is decisive of the present action, and a full and fair opportunity to contest the decision now said to be controlling (Schwartz v Public Admin. of County of Bronx, 24 NY2d 65, 71 [1969]). The issue of whether the elevator was defective was at the heart of the Haynes case, and Fofana was a party to that action. Even as a third-party defendant he had a vested interest in opposing any contention that the elevator door was not the cause of the accident. Like the codefendants in Schwartz, he was in every respect an antagonist to the defendants/third-party plaintiffs who impleaded him, and who asserted that the elevator door was not defective (id. at 72).
We therefore conclude that defendants were not guilty of law office failure in not also moving for summary judgment.
The bold is mine.
Of all the decisions that came out this past week, these are the ones that I read and though, "hey, that's interesting."
New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (App. Div., 2nd, 2010)
The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff's counsel, and an affidavit of the plaintiff's investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff's investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]). Accordingly, entry of a default judgment against these defendants was properly denied on the papers before the Supreme Court.
Ok, this one is a little older. I accidentally put it with the others. But since it's already here, I might as well keep it.
Tucker v Bay Shore Stor. Warehouse, Inc., 2010 NY Slip Op 00134 (App. Div., 2nd, 2010)
Contrary to the defendants' contentions, the Supreme Court did not improvidently exercise its discretion in denying that branch of their motion which was to compel the plaintiff to undergo a second independent medical examination. "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Mattocks v White Motor Corp., 258 AD2d 628, 629 [internal quotation marks and citations omitted]; see Kaplan v Herbstein, 175 AD2d 200). While CPLR 3121 does not limit the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it (see Young v Kalow, 214 AD2d 559; see also Huggins v New York City Tr. Auth., 225 AD2d 732). Here, the defendants failed to show that a further physical examination of the plaintiff was required. While we strongly disapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questions relating to her relevant past medical history, there was no indication by the defendants' examining physician that his prior examination was hindered, or that he required additional information.
Gladstein v Martorella, 2010 NY Slip Op 01732 (App. Div., 1st, 2010)
When parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. Extrinsic and parol evidence are not admissible to create an ambiguity in a written agreement which is complete, clear and unambiguous on its face (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).
The agreement herein is unambiguous on its face. Both sale and lease contracts may be utilized in meeting the 75% requirement. "The best evidence of what parties to a written agreement intend is what they say in their writing" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks and citation omitted]). If the parties intended to exclude lease contracts from consideration, they made a mistake in the agreement. "An omission or mistake in a contract does not constitute an ambiguity" (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks and citation omitted]).
Progressive Northeastern Ins. Co. v North State Autobahn, Inc., 2010 NY Slip Op 01779 (App. Div., 2nd, 2010)
The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07. Inasmuch as the two actions did not involve common questions of law or fact (see CPLR 602[a]), a joint trial was not warranted (see Beerman v Morhaim, 17 AD3d 302, 303).
At the close of the plaintiff's case, which arises out of the defendants' repair of a motor vehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of law on the ground that the plaintiff had failed to establish a prima facie case (see CPLR 4401). The Supreme Court granted the motion on a ground not argued by the defendants, namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehicle without asserting that the payment was, in some [*2]manner, "under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Uniform Commercial Code § 1-207). In granting the motion on that ground, the Supreme Court erred in two respects. First, accord and satisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042; see also Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908). The defendants did not plead accord and satisfaction as an affirmative defense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco Bank N.Y. v Cohn, 215 AD2d 840, 841; cf. Rienzi v Rienzi, 23 AD3d 450). Second, the doctrine of accord and satisfaction is not applicable because it contemplates full knowledge of the facts on the part of both parties who, in effect, enter into a new contract to expeditiously settle a contract dispute (see Horn Waterproofing Corp v Bushwick Iron & Steel Co., 66 NY2d 321, 325). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff's claim is that it was without such knowledge because of the defendants' alleged misrepresentation of material facts. Thus, a new trial is warranted.
We note that, upon retrial, the plaintiff should not be limited to damages in the sum of $2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of the defendant North State Autobahn, Inc., d/b/a North State Custom Auto, but rather to the amount sought in the complaint.
Another older one.
Simmons v New York City Health & Hosps. Corp., 2010 NY Slip Op 01692 (App. Div., 1st, 2010)
The motion court, by declining to grant defendant's motion to dismiss the complaint and ordering discovery, limited to plaintiff's assertion of the insanity toll, necessarily rejected defendant's res judicata defense. Thus, the order at issue, at least to the extent that it denied defendant's motion to dismiss on grounds of res judicata is appealable insofar as it affects a substantial right (see Fellner v Morimoto, 52 AD3d 352, 353 [2008]; CPLR 5701[a][2][v]).
The bold, that I will eventually use, will be mine.However, contrary to the lower court's implicit conclusion the instant action is in fact barred by res judicata. Plaintiff's prior action was against a doctor employed by defendant, arose from the same course of treatment alleged in the instant action, and was dismissed on statute of limitations grounds. While defendant was not a party to the prior action, as defendant doctor's employer, required to indemnify defendant doctor in the prior action, it was in privy with defendant doctor (Beuchel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; Prospect Owners Corp. v Tudor Realty Servs., 260 AD3d 299 [1999]), the real party in interest in that action (Ebert v New York City Health and Hosp. Corp., 82 NY2d 863, 866-867 [1993]), and the abbreviated statute of limitations applicable to defendant was thus applied to him (see International Shared Servs. v County of Nassau, 222 AD2d 407, 408 [1995]; Urraro v Green, 106 AD2d 567 [1984]). Plaintiff cannot avoid res judicata by varying facts, changing his causes of action and omitting references to the previously named doctor (see Reilly v Reed, 45 NY2d 24, 28-30 [1978]; Marinelli v Assocs. v Helmsley Noyes Co., 265 AD2d 1 [2000]).
CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing. The deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness before any officer authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.
David Horowitz has a great article in New York State Bar Association Journal about the use of unsigned deposition transcripts in summary judgment motions titled "Signature Required." As we all know, summary judgment must be supported by proof in admissible form. And generally, unsigned deposition transcripts are not proof in admissible form. Why? CPLR R. 3116(a), requires that the deposition transcript be signed by the witness. If that isn't done, the transcript may be admissible provided that the transcript was actually provided to the witness for his or her signature within 60 days of receipt. The rule is not without it's exceptions, however. For example, "When a party moving for summary judgment utilizes an unexectuted transcript of its party witness, thereby 'adopting' the contents...and the transcript is then relied on by the party opposing the motion, the transcript may be considered as proof in opposition by the opposing party." (quote is from the article. I have no idea how to cite to it). Another example is when it is used as a party admission. You'll have to read the article to get all the cites. If not for the cites, you should read it, just because.
Oh, ok, just one cite, Pina v. Flik Intern. Corp., 808 N.Y.S.2d 752 (App. Div., 2nd, 2007). There the Appellate DIvision makes it pretty simple. Either it's signed, or you show that you sent it to be signed. Otherwise, you're screwed:
The Supreme Court properly denied the defendants' motions for summary judgment since they failed to submit sufficient evidence in admissible form to establish their entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The defendants failed to show that the unsigned deposition transcripts of various witnesses they submitted in support of their motions had previously been forwarded to the relevant witnesses for their review pursuant to CPLR 3116 (a). Hence, contrary to the defendants' contention, they were not admissible (see Lalli v Abe, 234 AD2d 346 [1996]; Palumbo v Innovative Communications Concepts, 175 Misc 2d 156 [1997], affd 234 AD2d 346 [1998]; Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3116:1).
Yes, I know, there are exceptions, but generally, you will be screwed.
Compare Pina with St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (App. Div., 2nd, 2010). In that case the defendant offered several unsigned EUO transcripts as evidence in support of its motion for summary judgment. Defendant offered them under the theory that (1) they weren't being offered for their truth and (2) they were admissions. The Appellate Division found that defendant's cross motion should be have granted, reversing the lower court. The Appellate Term, twice now, has held that assignors are not parties. I read defendant's briefs, but don't quite understand just how defendant thought the transcripts were relevant if not offered for their truth. JT appears equally confused. And the Appellate Division's decision offers zero insight. The whole thing is weird.
So, in conclusion, make sure to read the article. It was the first thing I turned to when I opened the magazine. I'm a nerd. Fat too. God help me.
[edit] Sorry, I forgot to add something. In the very beginning of the article Mr. Horowitz briefly discusses the history of summary judgment, including the initial fight as to whether, and I'm paraphrasing here, it encroached on the right to trial by jury. The issue of whether summary judgment is constitutional, it appears, is not a new argument. If anyone is interested, there is a great Law Review article on that very topic. I posted it back in September with links to the articles.
Most people don't know or care about SLAPP. It's interesting stuff and there is a wealth of information about in on the internets. Along with SLAPP, note that plaintiff, in opposing defendant's summary judgment motion, only attached an attorney affirmation. No affidavit was attached. And note the rare reference to 3212(h).
Novosiadlyi v James, 2010 NY Slip Op 00938 (App. Div., 2nd, 2010)
The plaintiffs commenced this action alleging, inter alia, that the defendants defamed them during public hearings on their application for a permit allowing them to use their house in Lindenhurst as an owner-occupied two-family home. The defendant Joseph Ippolito moved for summary judgment dismissing the complaint insofar as asserted against him pursuant to CPLR 3212 and Civil Rights Law §§ 70-a and 76-a, and for recovery on his counterclaim for an award of an attorney's fee, contending that this action was an improper strategic lawsuit against public participation (hereinafter SLAPP action) (see 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 137 n 1, cert denied 508 US 910).
In the order granting Ippolito's motion, the Supreme Court determined that he established his prima facie entitlement to the protections of Civil Rights Law §§ 70-a and 76-a. Moreover, the court rejected the plaintiffs' opposition, which consisted of only an affirmation of counsel, as being without probative value and insufficient to oppose the summary judgment motion. Consequently, the Supreme Court granted Ippolito's motion for summary judgment dismissing the complaint insofar as asserted against him and awarded him summary judgment on his counterclaim for an award of an attorney's fee to the extent of scheduling an inquest.
Thereafter, the plaintiffs, proceeding pro se, moved pursuant to CPLR 2005 and 2221 for leave to renew their opposition to Ippolito's motion. In an order dated July 3, 2008, the Supreme Court denied the plaintiffs' motion for leave to renew, finding that no new facts were offered and that the new arguments offered as new facts would not have changed the prior result. The plaintiff Roman Novosiadlyi appeals from that order. We affirm. [*2]
A motion for leave to renew must be (1) based upon new facts not offered on the prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2], [3]; Caraballo v Kim, 63 AD3d 976, 978; Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480). Here, the plaintiffs failed to submit new facts sufficient to change the court's prior determination granting Ippolito's summary judgment motion. Civil Rights Law § 76-a was enacted to provide special protection for defendants in actions arising from the exercise of their rights of public petition and participation by deterring SLAPP actions (see 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d at 137 n 1; Singh v Sukhram, 56 AD3d 187, 194). Where, as here, the defendant established that the action involves the rights of public petition and participation (see Civil Rights Law § 76-a[1][a]), "damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false" (Civil Rights Law § 76-a[2]; see T.S. Haulers v Kaplan, 295 AD2d 595, 598). In addition, summary judgment must be awarded to the defendant unless the plaintiff demonstrates, in opposition, that the action has "a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law" (CPLR 3212[h]). The plaintiffs' submissions in support of their renewal motion failed to meet this burden or otherwise raise a triable issue of fact as to whether Ippolito knew that his statements were false or that he made them with reckless disregard of whether they were true. Accordingly, the Supreme Court properly denied the plaintiffs' motion for leave to renew (see T.S. Haulers v Kaplan, 295 AD2d at 598).
The bold is mine.
Normally this would go on the evidence blog, but I rarely post over there and am considering just killing the damn thing, so I'm posting it here. In fact, it's been sitting around since December, waiting to be posted.
Ocampo v Pagan, 68 AD3d 1077 (App. Div., 2nd, 2009)
The court improvidently exercised its discretion in precluding the testimony of the defendants' expert witness in the area of radiology. "CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information 'at any specific time, nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,' unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" (Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993]; see Rowan v Cross County Ski & Skate, Inc., 42 AD3d 563, 564 [2007]).
While a trial court "has the discretion to preclude expert testimony for the failure to reasonably comply with the statute" (Lucian v Schwartz, 55 AD3d 687, 688 [2008]), there was no finding [*2]here of failure to comply, reasonably or otherwise, with the statute. This is not a situation in which the defendants failed to demonstrate good cause for failing to disclose expert information regarding expert witnesses until the eve of trial (cf. Martin v NYRAC, Inc., 258 AD2d 443 [1999]). Rather, the defendants produced an affidavit of service showing that the required notice pursuant to CPLR 3101 (d) was timely served (see CPLR 2103 [b] [2]). The court here merely found that the plaintiff's explanation raised a question of fact as to whether the plaintiff had actually received the notice, specifically declining to place blame on either party for the "totality of . . . circumstances" underlying the claim of the plaintiff's counsel that he was unaware of the existence of the first expert witness disclosure until right before the start of the trial. Where there is no evidence of intentional or willful failure to disclose, "any potential prejudice to the plaintiffs [may be] eliminated by an adjournment of the trial" (Rowan v Cross County Ski & Skate, Inc., 42 AD3d at 564; see Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001]). By precluding the expert's testimony to avoid prejudicing the plaintiff, instead of simply adjourning the trial to avoid prejudice to either party, the court, in effect, penalized the defendants, although there was no evidence of wrongdoing on their part (see Rowan v Cross County Ski & Skate, Inc., 42 AD3d at 564; Shopsin v Siben & Siben, 289 AD2d at 221). Contrary to the plaintiff's contention, the error was not harmless.
Moreover, the Supreme Court improvidently exercised its discretion in limiting the scope of the defendants' cross-examination of the plaintiff by precluding the use of pleadings, bills of particulars, and sworn testimony given at a hearing pursuant to General Municipal Law § 50-h in subsequent lawsuits, and in precluding the introduction such documents into evidence.
Statements contained in a verified complaint, or " 'made by a party as a witness, or contained in a deposition, a bill of particulars, or an affidavit' " constitute informal judicial admissions (Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996], quoting Prince, Richardson on Evidence § 8-219, at 529 [Farrell 11th ed]; see Gomez v City of New York, 215 AD2d 353, 354 [1995]). As such, "they are generally admissible pursuant to an exception to the hearsay rule" (Payne v New Hyde Park Dodge, 163 AD2d 285, 286 [1990]). While not conclusive, they are "evidence of the fact or facts admitted" (Prince, Richardson on Evidence § 8-219, at 530 [Farrell 11th ed]; see Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d at 103; Gomez v City of New York, 215 AD2d at 354; Payne v New Hyde Park Dodge, 163 AD2d at 286). Where statements in the pleadings or the bill of particulars, or in depositions or hearings from other judicial proceedings are inconsistent with the trial testimony of a witness, they are also admissible to impeach the credibility of that witness (see Somir v Weiss, 271 AD2d 433 [2000]). Here, cross-examination testimony of the plaintiff regarding allegations in her pleadings and bill of particulars from a subsequent action arising out of a trip and fall, and parts of her testimony, given at a hearing pursuant to General Municipal Law § 50-h in connection with a subsequent medical malpractice action, were admissible on the issue of the truth of the facts stated, both as prior inconsistent statements impeaching the plaintiff's credibility, and as informal judicial admissions. While prior accidents or lawsuits may not be explored where the purpose is to "induce the inference of negligence or demonstrate that the plaintiff is litigious and therefore unworthy of belief" (Molinari v Conforti & Eisele, 54 AD2d 1113, 1114 [1976]), "it is open to one charged with having caused an injury to inquire into whether the claimant had sustained, or had claimed to have sustained, the same injury in circumstances unrelated to those at bar" (Bowers v Johnson, 26 AD2d 552 [1966]).
The trial court's conduct, including, inter alia, its excessive intervention into the trial proceedings, warrants remittal to the Supreme Court for a new trial before a different Justice (see Pickering v Lehrer, McGovern, Bovis, Inc., 25 AD3d 677, 679 [2006]; see also Schaffer v Kurpis, 177 AD2d 379 [1991]; Testa v Federated Dept. Stores, Abraham & Straus Div., 118 AD2d 696, 697 [1986]).
The bold and underscore are mine.