Matter of Kapon v Koch, 2014 NY Slip Op 02327 
The Second and Third Departments, while acknowledging that the "special circumstances" requirement no longer applies, nonetheless require the party seeking discovery to meet the "material and necessary" standard and more. Specifically, in those departments, a motion to quash a subpoena will be granted if "the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty, and properly denied when the party has shown that the evidence cannot be obtained from other sources" (Kooper v Kooper, 74 AD3d 6, 16-17 [2d Dept 2010] [citations omitted]; see American Heritage Realty LLC v Strathmore Ins. Co., 101 AD3d 1522, 1524 [3d Dept 2012]; Cotton v Cotton, 91 AD3d 697, 699 [2d Dept 2012]).
We conclude that the "material and necessary" standard adopted by the First and Fourth Departments is the appropriate one and is in keeping with this State's policy of liberal discovery. The words "material and necessary" as used in section 3101 must "be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406 ). Section 3101 (a) (4) imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.
The motion court properly found that the majority of the documents sought to be withheld are not protected by the attorney-client privilege or the work product doctrine or as materials prepared in anticipation of litigation. The record shows that the insurance companies retained counsel to provide a coverage opinion, i.e. an opinion as to whether the insurance companies should pay or deny the claims. Documents prepared in the ordinary course of an insurer's investigation of whether to pay or deny a claim are not privileged, and do not become so " merely because [the] investigation was conducted by an attorney'" (see Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [1st Dept 2005]).
Contrary to the plaintiff's contentions, the record demonstrates that the parties validly entered into a comprehensive open-court stipulation (see CPLR 2104; Pretterhofer v Pretterhofer, 37 AD3d at 446; Borghoff v Borghoff, 8 AD3d 519) by which the plaintiff unequivocally, knowingly, and voluntarily agreed to be bound (see Pretterhofer v Pretterhofer, 37 AD3d at 446). Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, to vacate the stipulation of settlement and properly granted that branch of the defendant's motion which was to incorporate the stipulation of settlement into the judgment of divorce.
However, the defendants did not move to hold the plaintiff in default of those provisions. Moreover, the order dated August 6, 2010, was not a valid 90-day notice, since it directed the filing of a note of issue in less than 90 days (see Gladman v Messuri, 71 AD3d 827, 828). Therefore, the plaintiff's failure to file a note of issue was of no consequence.
On November 12, 2010, the action was marked "Disposed" by the clerk. Within one year, on November 10, 2011, the plaintiff moved, in effect, to restore the action to active status, and annexed to that motion his opposition papers to the defendants' motion for summary judgment. In the order appealed from, the Supreme Court denied the motion.
Since no note of issue was filed in this case, this action was not on the trial calendar, and CPLR 3404 did not apply (see Khaolaead v Leisure Video, 18 AD3d 820; Lopez v Imperial Delivery Serv., 282 AD2d 190). Accordingly, there was no basis for denying the motion to restore (see Hemberger v Jamaica Hosp., 306 AD2d 244).
The plaintiff was never adjudicated in default of the order dated August 6, 2010, and he has now complied with all binding provisions of that order, including filing papers in opposition to the defendants' motion for summary judgment. Under the particular circumstances of this case, including the current procedural posture of the action, a determination of the issues on the merits, in keeping with the strong public policy in favor of resolving cases on the merits, is warranted (see Bunch v Dollar Budget, Inc., 12 AD3d 391).
Here, the affidavit of service indicating that the respondent was served pursuant to CPLR 308(2) by delivery of the papers to a person of suitable age and discretion was insufficient on its face to establish, prima facie, that the respondent was validly served pursuant to that section. However, a second affidavit of service constituted prima facie evidence of proper service of the summons and complaint pursuant to CPLR 308(1)(see Reich v Redley, 96 AD3d 1038), and of proper service of the notice required by Real Property Actions and Proceedings Law § 1303 (see US Bank N.A. v Tate, 102 AD3d 859). The respondent's bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in that affidavit of service (see ACT Props., LLC v Garcia, 102 AD3d 712, 713; Scarano v Scarano, 63 AD3d 716, 716-717).
Upon renewal, the motion court properly dismissed the action as against Rosenberg. As this Court previously found, the opinions of plaintiffs' expert, Dr. Harrigan, failed to raise a triable issue, and plaintiffs' submission of an attorney-drafted CPLR 3101(d) expert disclosure averring that an expert pathologist would testify concerning causation is not evidentiary proof in admissible form sufficient to defeat the subject motion for summary judgment (see e.g. Velasco v Green-Wood Cemetery, 48 AD3d 271, 272 [1st Dept 2008]). Furthermore, plaintiffs' argument that the claims against Nanda and Rosenberg differ is unavailing because, if Dr. Nanda was not [negligent in failing to order additional testing, Dr. Rosenberg could not be negligent in failing to ask Dr. Nanda to order such testing.
While acknowledging that an extension would be warranted by an attorney's illness, a death in the family, or a computer breakdown caused by Hurricane Sandy, the court saw no justification for granting an extension in this case. The court's view was that the excuse offered was a perfunctory claim of law office failure, and did not rise to the level of good cause.
In seeking to reverse the appealed order, defendant claims that CPLR 3212(a) requires a showing of good cause for a late summary judgment motion only when the motion is made more than 120 days after the filing of the note of issue. When a party fails to comply with a court-imposed deadline of less than 120 days, defendant argues, the operative statutory provision is CPLR 2004, under which "law office failure" may be considered a factor supporting a finding of good cause. Defendant further contends that, even under CPLR 3212(a), it has demonstrated good cause for its failure to move within the court-imposed time limit.
While defendants' employee's affidavit in opposition stated that more than $55,000 had been spent on the improvements, the employee was not a person with knowledge of the facts, and her statement was unsupported by any admissible evidence, such as affidavits by the various vendors she claimed would testify to additional improvements at trial, and devoid of an explanation of why they are not now available (see Castro v New York Univ., 5 AD3d 135 [1st Dept 2004]; CPLR 3212[b]).
Defendants failed to show that they needed further discovery, especially since they are not [*2]seeking any records from plaintiff, and they had 17 months to search their own records (see Bailey v New York City Tr. Auth., 270 AD2d 156 [1st Dept 2000]; CPLR 3212[f]).
Appellants' motion was timely filed and respondents have not shown that they would be prejudiced by granting appellants' leave to assert the new claims. Among other things, appellants are not prejudiced by the mere fact of exposure to potentially greater liability in the form of punitive damages (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 ; Letterman v Reddington, 278 AD2d 868 [4th Dept 2000]).
In this mortgage foreclosure action, the motion court properly denied defendant's motion to dismiss the complaint on the ground of lack of jurisdiction. Defendant waived the defense of lack of personal jurisdiction since she failed to assert it in her answer and in the two prior motions she made (see CPLR 320; Ohio Sav. Bank v Munsey, 34 AD3d 659 [2d Dept 2006]). Although defendant is correct that the evidence of her physical description rebuts the presumption of proper service since it does not match the description provided by the process server, the court was not required to direct a traverse hearing since defendant waived this defense prior to alerting the court to the discrepancies.
The appellants failed to establish a sufficient basis for disqualifying the plaintiff's expert witness. The record demonstrated that the expert was originally and continuously retained on the plaintiff's behalf, such that no confidential relationship existed between the plaintiff's expert and any defendants in this action (see Roundpoint v V.N.A., Inc., 207 AD2d 123; see generally Berkowitz v Berkowitz, 176 AD2d 775; cf. Mancheski v Gabelli Group Capital Partners, Inc., 22 AD3d 532, 534; Matter of Walden Fed. Sav. & Loan Assn. v Village of Walden, 212 AD2d 718, 719). No other basis for finding a conflict of interest was presented. Accordingly, the appellants' motion to disqualify the plaintiff's expert witness was properly denied.
The arbitral awards, rendered in compulsory arbitration, were not irrational or contrary to settled, and therefore should have been confirmed. Respondent insurer's disclaimer, based strictly upon primacy of coverage, was not so absolute or unequivocal as to constitute a repudiation of the policy (see Seward Park Hous. Corp. v Greater N.Y. Mut. Ins. Co., 43 AD3d 23, 30 [1st Dept 2007]). The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated (11 NYCRR 65-1.1, 65-24[c]).
On December 18, 2013 the Appellate Division, Second Department decided Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 2013 NY Slip Op 08430 [2nd Dept. 2013]. In short, the Appellate Division held that a no-fault Plaintiff was not required to establish that its bills was a business record under CPLR 4518 to prove its prima facie case.
On January 24, 2014, in Horton Med., P.C. v Liberty Mut. Ins. Co., 2014 NY Slip Op 50116(U) [App. Term, 2nd, 11th & 13th Jud. Dists. 2014] the Appelalte Term decided an appeal where the plaintiff's motion was unopposed. The Appellate Term held "Upon a review of the record, we are in agreement with the Civil Court's determination that the affidavit by plaintiffs' billing manager in support of plaintiffs' motion for summary judgment failed to comply with CPLR 4518 (see Dan Med. P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006])"
On February 5, 2014, the Appellate Division decided New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 2014 NY Slip Op 00639 [2nd Dept. 2014]. It held: "A medical provider is not required, as part of its prima facie showing, to demonstrate the admissibility of its billing records or to prove the truth of their content under the business records exception to the hearsay rule (see CPLR 4518[a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.,AD3d, 2013 NY Slip Op 08430, [2d Dept 2013])."
While the Horton decsion could have been an oversight, it also could have been an attempt to somehow distinguish Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.. But if that were the case New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 2014 NY Slip Op 00639 [2nd Dept. 2014] put that to bed. But--and im not saying that this is the case--what if the Appellate Term (or any court for that matter) refused to follow precedent? What is the remedy? Recusal? Disband the Appellate Term--the Appellate Term would not exist but for the Appellate Division's say so. That, however, is not a remedy for a party. Should a party request recusal of an entire Appellate Term? I haven't seen that happen oustide of pro se cases.
At a court appearance on October 10, 2012, the plaintiffs made an oral application pursuant to CPLR 3126 to preclude Lamboy from testifying at trial. The plaintiffs argued that, despite prior requests and orders, the MTA defendants had failed to provide the requested documents. The MTA defendants opposed the application, arguing, inter alia, that they had been unsuccessfully searching for the documents and that, if given the opportunity, they would provide affidavits attesting to the efforts they had made to find them. The Supreme Court granted the plaintiffs' application without giving the MTA defendants an opportunity to show the efforts they had made to find the requested documents.
A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action [*2](see Wells Fargo Bank v Malave, 107 AD3d 880). As Hayles failed to demonstrate any potentially meritorious defense to the foreclosure action or a reasonable excuse for her default in opposing the plaintiff's motion for summary judgment, the Supreme Court properly denied that branch of her motion which was to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1) (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d at 990).
A motion to dismiss pursuant to CPLR 3211(a)(1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 88; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37-38). The deposition testimony relied upon by the defendants in support of this branch of their cross motion does not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Fontanetta v John Doe 1, 73 AD3d 78, 86). Further, contrary to the defendants' contention, the other documentary evidence upon which they rely does not conclusively establish that the plaintiff in Action No. 2, Residential Funding Company, LLC, lacks standing.
It appears from this record that the plaintiff was the holder of the mortgage and note. In any event, by failing to appear in the action, the debtor waived the defense of lack of standing (see HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817). However, the affidavit attesting to the debtor's default in repaying the mortgage loan did not comply with CPLR 2309(c). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying relief to the movant without prejudice.