This is a side project. It's really a side project to my other side project, www.nofaultparadise.blogspot.com. For some inexplicable reason, I like the procedural stuff. Worse yet, I like to compile caselaw. Don't ask.
Until I can find a better place for the disclaimer, I'm putting it here.
Beagle Developers, LLC v Long Is. Beagle Club #II, Inc., 2009 NY Slip Op 05258 (App. Div., 1st, 2009)
Nor were the contract's unambiguous terms modified by defendant's attempt to accommodate plaintiff's requests for documents relating to the merger. The contract clearly states that a waiver of any right at one time does not waive any right at any other time, and further states that the contract may only be modified in writing. Plaintiff cannot negate these unambiguous terms by parol evidence (see Namad v Salomon, 74 NY2d 751, 753 [1989]; Rose v Spa Realty Assoc., 42 NY2d 338, 343 [1977]).
CPLR R. 3211 Motion to dismiss
CPLR R. 3211(e) Motion to replead
For some much needed background on this procedural novelty read Janssen v Incorporated Vil. of Rockville Ctr., 2008 NY Slip Op 09962 (App. Div., 2nd). For the shorter, highlighted version, click HERE.
Clark v Pfizer, Inc., 2009 NY Slip Op 05743 (App. Div., 2nd, 2009)
The defendant correctly contends that the appeal from the order dated November 2, 2007, must be dismissed, inasmuch as the plaintiff failed to file a notice of appeal within 35 days after service upon him by mail of that order with notice of entry (see CPLR 2103[b][2]; 2103[c], 5513[a]; Matter of Wei v New York State Dept. of Motor Vehs., 56 AD3d 484, 485; Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417; Matter of Eagle Ins. Co. v Soto, 254 AD2d 483).
Moreover, the Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, for leave to replead so as to assert a cause of action to recover damages for discrimination in the terms, privileges, and conditions of employment in violation of Executive Law [*2]§ 296. A motion for leave to replead, although now constituting little more than a "poor substitute" or "arcane alternative" to a motion for leave to amend a pleading under CPLR 3025(b) (Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 19), is still cognizable and is not expressly "constrained by any time limitation" (id.). Nonetheless, in the matter before us, the proposed complaint, as sought to be repleaded, is palpably insufficient and patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 226-227; see also Barnum v New York City Tr. Auth., 62 AD3d 736).
The bold is mine.
Carbocci v Lake Grove Entertainment, LLC, 2009 NY Slip Op 05739 (App. Div., 2nd, 2009)
Trial courts are encouraged to conduct bifurcated trials in personal injury cases (see 22 NYCRR 202.42[a]). However, where the nature of the plaintiff's injuries has an important bearing on the question of liability, a unified trial should be held (see Wahid v Long Is. R.R. Co., 59 AD3d 712; Wright v New York City Hous. Auth., 273 AD2d 378). The party opposing bifurcation has the burden of showing that the nature of the injuries necessarily assists the factfinder in making a determination with respect to the issue of liability (see Barrera v Skaggs-Walsh, Inc., 279 AD2d 442).
Here, the plaintiff, Dolores Carbocci (hereinafter Carbocci), fell while ice skating at a rink owned and operated by the defendant Lake Grove Entertainment, LLC, doing business as Sports Plus (hereinafter Sports Plus). The plaintiffs alleged that Carbocci was removed from the ice [*2]by the defendant Patrick Lever, an employee of Sports Plus, either negligently or forcibly, despite Carbocci's instructions to not touch her and to call an ambulance. The defendants assert that Carbocci stood up on her own and was merely assisted from the ice by Lever and other employees of Sports Plus. The plaintiffs moved for a unified trial asserting that evidence with respect to her medical treatment was necessary to prove her case. The Supreme Court denied the motion and, sua sponte, directed the trial court to give a particular preliminary instruction to the jury relating to the bifurcation of the case. We reverse.
The plaintiffs established that Carbocci's injuries are interwoven with the existence or extent of the defendants' liability on both the negligence and battery causes of action (see Sokolovsky v Mucip, Inc., 32 AD3d 1011). Evidence relating to Carbocci's injuries is probative in determining how the incident occurred (see Byrd v New York City Tr. Auth., 172 AD2d 579, 581; DeGregorio v Lutheran Med. Ctr., 142 AD2d 543). Accordingly, the plaintiffs' request for a unified trial was improperly denied as the issues of liability and damages are inseparable (see Jacobs v Broidy, 88 AD2d 904; cf. Pasquaretto v Cohen, 37 AD3d 440).
In light of the foregoing, the preliminary instruction the Supreme Court directed the trial court to give to the jury is unnecessary.
The bold is mine.
CPLR R. 2221(e) Motion for Leave to Renew
Burgos v Rateb, 2009 NY Slip Op 05738 (App. Div., 2nd, 2009)
The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew, as the plaintiff failed to offer a reasonable justification for her failure to present the evidence offered in support of renewal in her opposition to that branch of Shahin's original motion which was for summary judgment dismissing the complaint insofar as asserted against him (see CPLR 2221[e]; Orlando v City of New York, 21 AD3d 357). The retention of a new expert is not a legitimate basis for renewal; renewal "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Welch Foods v Wilson, 247 AD2d 830, 831; see Reshevsky v United Water N.Y., Inc., 46 AD3d 532; Mundo v SMS Hasenclever Maschinenfabrik, 224 AD2d 343, 344).
The bold is mine.
How often do you see one of these?
It's a long decision. I'm not editing down. I am however, making you click a quarter way through to get to the rest of the case. You could probably just click the link too. Whatever you want to do is fine with me.
Bleecker St. Tenants Corp. v Bleeker Jones LLC, 2009 NY Slip Op 05196 (App. Div., 1st, 2009)
This appeal requires us to consider the centuries-old Rule against Perpetuities, [*2]specifically, whether the exception to the prohibition against remote vesting of options appurtenant to a lease is applicable to the renewal option clause contained in the parties' lease.
Plaintiff Bleecker Street Tenants Corp. is the owner of the building located at 277-279 Bleecker Street, a six-story walkup that was converted to cooperative ownership effective September 1, 1983. Contemporaneously with the co-op conversion, the building's first-floor commercial space was leased to defendant Bleeker Jones LLC's predecessor in interest, Bleecker Jones Leasing Company, a partnership made up of the same four individuals who made up the sponsor partnership.
The lease, drafted by the tenant, provided for an initial term of 14 years, with nine options to renew for consecutive 10-year periods, exercisable through a series of notices. The tenant could exercise the renewal options by giving written notice at least six months before the end of the preceding term; the lease also provided that the landlord would send the tenant a "reminder notice" regarding the option, seven months before the end of the preceding term, if the tenant had not already exercised the option. In the event that the landlord did not send the seven-month notice and the tenant did not exercise the option on six months' notice, then the renewal option would remain in effect until such time as the landlord sent the tenant notice of its right to exercise the option. Once the landlord sent the tenant this final written notice, the tenant would have 60 days within which to exercise the renewal option. The lease further provided that, in the event that the renewal option went unexercised and the landlord did not send the 60-day notice, then, "[i]f the term shall have expired, Lessee shall remain in possession as a month-to-month tenant" until such time as the landlord sent the 60-day notice.
At the end of the initial 14-year lease term, on August 30, 1997, there was no exercise of the lease option. Accordingly, the commercial tenant thereafter remained in possession as a month-to-month tenant.
Plaintiff commenced this action in December 2007, seeking a declaration that the lease renewal options are void under the statutory and common-law rules against perpetuities and unreasonable restraints on alienation.
Defendants moved, and plaintiff cross-moved, for summary judgment. The motion court granted defendants' motion, ruling that the Rule against Perpetuities does not apply because the lease's renewal option is appurtenant to the lease, in that it " originates in one of the lease provisions, is not exercisable after lease expiration, and is incapable of separation from the lease'" (quoting Symphony Space v Pergola Props., 88 NY2d 466, 480 [1996]). The court reasoned that during the period of extended month-to-month possession, "[w]hile the term' of the lease may expire upon the failure of either party to issue their respective notices, the Lease itself does not."
New York's statutory Rule against Perpetuities includes a codification of the common-law rule prohibiting the remote vesting of interests and provides that "[n]o estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in being at the creation of the estate . . ." (EPTL 9-1.1[b]). Stated another way, subsection (b) " invalidates any interest that may not vest within the prescribed time period'" (Symphony Space v Pergola Props., 88 NY2d at 476, quoting Wildenstein & Co. v Wallis, 79 NY2d 641, 647-648 [*3][1992]). The rule flows from "the principle that it is socially undesirable for property to be inalienable for an unreasonable period of time" (Symphony Space, 88 NY2d at 475), and is designed to " ensure the productive use and development of property by its current beneficial owners by simplifying ownership, facilitating exchange and freeing property from unknown or embarrassing impediments to alienability'" (id., quoting Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156, 161 [1986]). Although the statutory period is lives in being plus 21 years, where —- as here — the parties to the agreement are corporate entities and no measuring lives are stated in the instrument, "the perpetuities period is simply 21 years" (Symphony Space, 88 NY2d at 481; Bruken Realty, 67 NY2d at 161).
The rule against remote vesting has been held to be applicable to purchase options contained in leases (see Symphony Space at 476), as well as to lease renewal options contained in leases (see Warren St. Assoc. v City Hall Tower Corp., 202 AD2d 200, 200-201 [1994]).
On their face, all except the first of the renewal options provided for here would run afoul of the rule, as they vest more than 21 years after execution of the lease (see e.g. Warren St. Assoc., supra). However, an exception to the rule's generally strict application exists for options appurtenant to a lease, which are considered "part of" the lease (see Buffalo Seminary v McCarthy, 86 AD2d 435, 441 n5 [1982], affd 58 NY2d 867 [1983]). The required characteristics of such options are that they (1) "originate[] in one of the lease provisions," (2) are "not exercisable after lease expiration," and (3) are "incapable of separation from the lease" (Symphony Space, 88 NY2d at 480).
CPLR § 4110-b Instructions to jury; objection
Klein-Bullock v North Shore Univ. Hosp. at Forest Hills, 2009 NY Slip Op 04966 (App. Div., 2nd, 2009)
The claimed errors in the verdict sheet are not preserved for appellate review since plaintiffs did not object thereto (CPLR 4110-b; see Suria v Shiffman, 67 NY2d 87, 97 [1986]), and we decline to review them (see Pagnotta v Diamond, 51 AD3d 1099, 1100 [2008]). In any event, nothing in the record or verdict indicates that the jury was confused by the wording of the interrogatories (cf. e.g. Herbert H. Post & Co. v Sidney Bitterman, Inc., 219 AD2d 214, 223 [1996]), and no issues were raised as to general negligence (see McKoy v County of Westchester, 272 AD2d 307 [2000]; Wahler v Lockport Physical Therapy, 275 AD2d 906 [2000], lv denied 96 NY2d 701 [2001]) or res ipsa loquitur (see Kruck v St. John's Episcopal Hosp., 228 AD2d 565 [1996]) that should have been charged and submitted to the jury.
The bold is mine.
When you get a chance, head over to Full Court Pass, a blog discussing mostly New York appellate law. Authored by Norman A. Olch, who, going by his profile (the "about me" section of his blog), is full of the smarts. I don't think he has a twitter account.
Anyways. The blog is relative new. I chanced upon it when I was over at Sui Generis, checking to see if any of my posts (here or at the other blog) made it to her New York Legal Blog Round Up. It didn't. Fingers crossed for next week.
So go have a look. I like it.
CPLR R. 3216 Want of prosecution
(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed.
CPLR § 2004 Extensions of time generally
Foley v West-herr Automotive Group, Inc., 2009 NY Slip Op 04808 (App. Div., 4th, 2009)
Supreme Court did not abuse its discretion in denying the motion of plaintiffs seeking permission to conduct further discovery and to vacate the court's demand to serve and file a note of issue pursuant to CPLR 3216 (b) (3) within 90 days. The court's demand provided that, in the event that plaintiffs failed to comply with the demand, the court upon its own motion would dismiss the complaint based on plaintiffs' unreasonable neglect in proceeding with the action. We note that plaintiffs moved within the 90-day period to vacate the demand and for an extension of time in which to complete discovery, thereby avoiding default with respect to the court's demand (see Walton v Clifton Springs Hosp. & Clinic, 255 AD2d 964, 965; Conway v Brooklyn Union Gas Co., 212 AD2d 497; cf. Baczkowski v Collins Constr. Co., 89 NY2d 499, 503-504). We further note, however, that "[t]he motion requires the moving party to make a showing of need for the extension or good excuse for past delay" (Walton, 255 AD2d at 965 [internal quotation marks omitted]; see CPLR 2004; Cook v City of New York, 11 AD3d 424). We conclude that plaintiffs failed to demonstrate good cause for an extension of time in which to complete discovery, and they also failed to present a good excuse for the delay. Plaintiffs sought to excuse the prior delay by showing that the court's discovery deadline was ineffective, in view of the parties' continued discovery and the determination of an appeal after that deadline had expired. However, the record does not support the conclusion that the court's demand pursuant to CPLR 3216 (b) (3) was based upon plaintiffs' violation of its discovery deadline, as opposed to the failure of plaintiffs to move the case forward after the discovery deadline had expired. We therefore conclude that the court did not abuse its discretion in denying the motion. We note in any event that the order denying plaintiffs' motion further [*2]extended the time in which to file a note of issue and statement of readiness beyond the original 90-day deadline in the demand, and it specified that, in the event that plaintiffs did not comply with that later deadline, the court's motion to dismiss the complaint would be "heard" on such later date. Thus, the order in effect gave plaintiffs yet another extension of time in which to complete discovery.
Lot 57 Acquisition Corp. v Yat Yar Equities Corp., 2009 NY Slip Op 05512 (App. Div., 2nd, 2009)
Since the defendant Yat Yar Equities Corp. (hereinafter Yat Yar) did not raise the defense of lack of standing in a timely motion to dismiss the complaint or in its responsive pleading, that defense is waived (see CPLR 3211[e]; Gager v White, 53 NY2d 475, 488, cert denied 454 US 1086; Aames Funding Corp. v Houston, 57 AD3d 808, 809).
Standing can be waived through other, less obvious, means. See, Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 (Ct. App., 2008). Fair Price can of course be limited to it facts. Can it be expanded outside no-fault, to other statutory or contract driven arenas.
Starting last first, here we go.
McPartlan v Basile, 2009 NY Slip Op 05521 (App. Div., 2nd, 2009)
Contrary to the appellants' contention, the engineer's report was admitted into evidence, and properly so, not to prove the truth or accuracy of its contents, but to establish that the plaintiffs had a good faith basis for determining that the report was unacceptable. Furthermore, the record supports the conclusion that the plaintiffs did, in fact, act in good faith, and thus their termination of the contract of sale pursuant to Paragraph 39 of the contract was valid (see Hirsch v Food Resources, Inc., 24 AD3d 293, 296; Tradewinds Fin. Corp. v Refco Sec., 5 AD3d 229, 230-31; Richbell Info. Sers. v Jupiter Partners, 309 AD2d 288, 302). Accordingly, the Supreme Court properly determined that the plaintiffs were entitled to the return of their down payment.
Yun v Barber, 2009 NY Slip Op 05535 (App. Div., 2nd, 2009)
The plaintiffs' remaining submissions did not constitute admissible evidence since they were unsworn (see Grasso v Angerami, 79 NY2d 813; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644).
Vickers v Francis, 2009 NY Slip Op 05540 (App. Div., 2nd, 2009)
Initially, the X ray report dated September 22, 2006, the magnetic resonance imaging (hereinafter MRI) reports of Dr. Robert Diamond, the medical records from Alliance Medical Office, the plaintiff's emergency room and hospital records, and the reports of Dr. Nunzio Saulle dated August 31, 2006, and October 19, 2006, were not in admissible form because they were unsworn (see Grasso v Angerami, 79 NY2d 813, 814-815; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644; Uribe-Zapata v Capallan, 54 AD3d 936, 937; Choi Ping Wong v Innocent, 54 AD3d 384, 385).
The affirmed medical reports of Dr. Saulle were insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury to her cervical or lumbar spine as a result of the subject accident. Neither the plaintiff nor Dr. Saulle proffered competent objective medical evidence revealing the existence of a significant limitation in either region of the plaintiff's spine that [*2]was contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525). Furthermore, in reaching his conclusion in his affirmed medical reports, Dr. Saulle clearly relied on the unsworn MRI reports of Dr. Diamond (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Moreover, Dr. Saulle failed to address, in any of his affirmed reports, the fact that the plaintiff injured her neck and back in a subsequent accident in October 2007. His failure to address that accident and the resulting injuries rendered speculative his conclusions that the range of motion limitations he noted in the plaintiff's cervical and lumbar regions after October 2007 were caused by the subject accident (see Donadio v Doukhnych, 55 AD3d 532; Seck v Minigreen Hacking Corp., 53 AD3d 608).
Wartski v C.W. Post Campus of Long Is. Univ., 2009 NY Slip Op 05115 (App. Div., 2nd, 2009)
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant had actual notice of a recurring dangerous condition such that it could be charged with constructive notice of each specific recurrence of that condition (see Erikson v J.I.B. Realty Corp., 12 AD3d 344, 346; Weisenthal v Pickman, 153 AD2d 849, 851). Here, at most, the evidence submitted by the plaintiff established that the defendant had only a general awareness that the stairs became wet when ice and snow was tracked into the building, which was insufficient to establish constructive notice of the particular condition which caused the plaintiff to fall (see Arrufat v City of New York, 45 AD3d 710; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656; Andujar v Benenson Inv. Co., 299 AD2d at 504; Yearwood v Cushman & Wakefield, Inc., 294 AD2d 568, 569).
The plaintiff's expert affidavit should not have been considered in determining the motion since the expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery, and the plaintiff offered no valid excuse for her delay [*2]in identifying the expert (see CPLR 3101[d][1]; Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863; Gerry v Commack Union Free Sch. Dist., 52 AD3d 467, 469; Gralnik v Brighton Beach Assocs., LLC, 3 AD3d 518; Dawson v Cafiero, 292 AD2d 488). In any event, even if the plaintiff's expert affidavit could have properly been considered, the result would not have been different.
The bold is mine.
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