theCPLRblog

CPLR § 3101(c) & (d) EUO Reports and Privilege

CPLR § 3101(c)  Attorney's work product. The work product of an attorney shall not be obtainable.

CPLR § 3101(d) Trial Preparation (2) Materials

I have this post on my other blog, and don't feel like copying and pasting it.  Head over there to check it out.  Ok fine, here is some of it:

Tomorrow's NYLJ has an interesting article from Evan H. Krinick (of LMK fame), a partner at Rivkin Radler. Insurance Fraud: Examinations Under Oath And Attorney-Client Privilege, discusses the circumstances swhere EUO reports prepared by counsel will be privileged and not discoverable.

and all the way to the bottom.

Under this analysis, it looks like SIU reports, memos, files, emails, etc. are fair game. For more information on this issue (not SIU, privilege in general), have a look at People v. Kozlowski, 2008 NY Slip Op 07759, (Ct. App., 2008), and a recent article in the NYLJ that discusses the Kozlowski case (also available in part HERE). For other cases that have addressed the privilege issue recently, click HERE.

Yup, no middle here, to see the middle, go over to the other blog. 

CPLR R. 2106

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit.

St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U) (App. Term, 2nd, 2009)

In opposition, plaintiff submitted an affirmation executed by its principal, Dr. Zakharov. Defendant objected to said affirmation in its reply papers, citing CPLR 2106. The submission of Dr. Zakharov's affirmation was improper because he is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A] 2006 NY Slip Op 51055[U] [App Term 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti, 265 AD2d 540 [1999]). Since the Civil Court should not have considered any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Plaintiff's remaining contentions lack merit.

The bold is mine.

The Appellate Division, Second Department decided a similar issue a few month's earlier in Lessoff v 26 Ct. St. Assoc. LLC, 2009 NY Slip Op 00195 (App. Div., 2d 2009).  In that case, the plaintiff was an attorney.  The Court found that CPLR R. 2106 prohibited him from using an affirmation.

CPLR R. 3212(a) -- 120 day rule

CPLR R. 3212 Motion for summary judgment

(a) Time; kind of action

Tray-Wrap, Inc. v Pacific Tomato Growers, Ltd., 2009 NY Slip Op 03041 (App. Div., 1st, 2009)

Plaintiff asserts that the instant motions should be denied as untimely because they were made without judicial leave more than 120 days after the filing of the note of issue (see CPLR 3212[a]). It is undisputed that defendants previously made timely motions for summary judgment. By decision dated February 6, 2007, Supreme Court denied the same, without prejudice to resubmission upon papers which were to include copies of the pleadings. Such motions were made within a reasonable time thereafter. Accordingly, the instant motions, although untimely, were made with leave of the court upon a showing of good cause pursuant to the statute.

The bold is mine.

22 NYCRR 202.27; Adjournments

22 NYCRR 202.27 Defaults

At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows:

(a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.

(b) If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross-claims.

(c) If no party appears, the judge may make such order as appears just.

Vorontsova v Priolo, 2009 NY Slip Op 03053 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered February 13, 2008, which, in an action for medical malpractice, denied plaintiff's motion to vacate the court's dismissal of the action due to plaintiff's failure to proceed to trial, unanimously reversed, on the law and the facts, without costs, the motion granted, and the action restored to the trial calendar.

The court improvidently exercised its discretion in sua sponte dismissing the action for failure to proceed to trial rather than marking it off the trial calendar. The record shows that defendants had not moved for dismissal of the action, that this was the first time plaintiff had sought an adjournment, which the parties had agreed to due to the unavailability of plaintiff's expert, and that both parties appeared at the calendar call although plaintiff's counsel had to temporarily leave to tend to another matter (see 22 NYCRR 202.27; Danne v Otis El. Corp., 31 AD3d 599 [2006]; Rodriguez v Pisa Caterers, 146 AD2d 686 [1989]). Furthermore, in seeking restoration, plaintiff sufficiently demonstrated both a reasonable excuse and a meritorious cause of action (CPLR 5015[a]).

The bold is mine

CPLR R. 3211(a)(5) SOL

CPLR R. 3211 Motion to dismiss

(a)(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

Cimino v Dembeck, 2009 NY Slip Op 03117 (App. Div., 2nd, 2009)

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Swift v New York Med. Coll., 25 AD3d 686, 687; Savarese v Shatz, 273 AD2d 219, 220). "In order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiff's cause of action accrued" (Swift v New York Med. Coll., 25 AD3d at 687). Moreover, in deciding a CPLR 3211 motion to dismiss, "a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff" (Sabadie v Burke, 47 AD3d 913, 914).

Construing the facts as alleged in the complaint in the light most favorable to the plaintiff, the defendants failed to establish their prima facie entitlement to dismissal pursuant to CPLR 3211(a)(5) (id.; see Swift v New York Med. Coll., 25 AD3d at 687). Accordingly, the Supreme Court [*2]erred in granting the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

The bold is mine.

Administrative Agencies

Matter of New York City Pedicab Owners' Assn., Inc. v New York City Dept. of Consumer Affairs, 2009 NY Slip Op 03108 (App. Div., 1st, Dept.)

"Administrative agencies can only promulgate rules to further the implementation of the law as it exists; they have no authority to create a rule out of harmony with the statute" (Matter of Jones v Berman, 37 NY2d 42, 53 [1975]). Moreover, an administrative body may not disregard definitions made by legislative bodies under the guise of "interpreting" regulations it is empowered to administer. "The plain language of the legislative enactment is controlling, and the administrative agency may not make a unilateral ruling that is at variance with the legislative enactment" (Two Assoc. v Brown, 127 AD2d 173, 183 [1987], appeal dismissed & lv denied 70 NY2d 792 [1987]).

The bold is mine

CPLR R. 3211(a)(8); CPLR § 302(a)(3)(ii) Jurisdiction

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a)(3)(ii)

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce

Vaichunas v Tonyes, 2009 NY Slip Op 03159 (App. Div., 2nd, 2009)

The plaintiff was injured as she exited a jitney bus operated by the defendant, a non-New York domiliciary, in Atlantic City, New Jersey. Contrary to the plaintiff's contention, neither the fact that she is a New York resident (see Fantis Foods v Standard Importing Co., 49 NY2d 317, 326), nor the fact that she sought and obtained medical treatment in New York, provided a basis for the exercise of personal jurisdiction over the defendant. Pursuant to the portion of the New York long-arm statute relied upon by the plaintiff, CPLR 302(a)(3), personal jurisdiction over a nondomiciliary may be exercised when the defendant, inter alia, "commits a tortious act without the state causing injury to person or property within the state." "The situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff (see, McGowan v Smith, 52 NY2d 268, 273-274)" (Herman v Sharon Hosp., 135 AD2d 682, 683; see Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793; Marie v Altshuler, 30 AD3d 271, 272-273; Polansky v Gelrod, 20 [*2]AD3d 663, 665; Carte v Parkoff, 152 AD2d 615, 616).

Accordingly, we affirm the granting of the defendant's, in effect, renewed motion pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction, albeit on a basis slightly different from that relied upon by the Supreme Court. The situs of the plaintiff's injury was Atlantic City, New Jersey. Given that the injury occurred in New Jersey, and involved a nondomiciliary, it was not necessary to consider whether the additional aspects of CPLR 302(a)(3)(ii) were met (see Siegel, NY Prac § 88, at 164 [4th ed]).

The bold is mine.

CPLR § 5501

CPLR § 5501 Scope of review

(a) Generally, from final judgment. An appeal from a final judgment brings up for review:

1. any non-final judgment or order which necessarily affects the final judgment, including any which was adverse to the respondent on appeal from the final judgment and which, if reversed, would entitle the respondent to prevail in whole or in part on that appeal, provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken

(c) Appellate division

Stinson v Roosevelt U.F.S.D., 2009 NY Slip Op 03156 (App. Div., 2nd, 2009)

The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see CPLR 5501[c]).

...

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

CPLR § 3126

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Jones v LeFrance Leasing Ltd. Partnership, 2009 NY Slip Op 03137 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries and wrongful death, the defendant Alliance Elevator Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated October 10, 2008, as, in effect, denied that branch of its motion which was pursuant to CPLR 3126 to unconditionally preclude the plaintiffs from introducing evidence concerning item numbers 7, 8, 9, 10, 11, 15, 16, 17, 18, 20, and 21 of its demand for a bill of particulars.

ORDERED that the order is modified, on the law, by deleting the provision thereof, in effect, denying that branch of the appellant's motion which was pursuant to CPLR 3126 to unconditionally preclude the plaintiffs from introducing evidence concerning item numbers 7, 10, 15, 16, 18, 20, and 21 of its demand for a bill of particulars, and substituting therefor a provision granting that branch of the motion to the extent of precluding the plaintiffs from introducing evidence concerning those items of the demand unless the plaintiffs serve a further bill of particulars with respect to those items; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, and the plaintiffs' time to serve a further bill of particulars with respect to the demanded items is extended until 30 days after service upon them of a copy of this decision and order.

The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial (see Valentine v Armor Elevator Co., 155 AD2d 597; Ferrigno v General Motors [*2]Corp., 134 AD2d 479). Here, the appellant was entitled to particulars regarding the manner in which it allegedly was negligent and the alleged defect of the subject elevator (see Ramondi v Paramount Fee, LP, 30 AD3d 396; Valentine v Armor Elevator Co., 155 AD2d 597), as well as specification with respect to the plaintiffs' claims concerning the creation of the allegedly dangerous condition (see Ramondi v Paramount Fee, LP, 30 AD3d at 397). Accordingly, unless the plaintiffs particularize the specific acts of negligence which precipitated the purported defective condition, the specific defect alleged, and the creation of the alleged defective condition, as requested in items 7, 10, 15, 16, 18, 20, and 21 of the demand, they will be precluded from adducing any evidence at trial with respect thereto (see Laukaitis v Ski Stop, 202 AD2d 554, 556; Ferrigno v General Motors Corp., 134 AD2d at 481).

The bold is mine.

CPLR R. 3211 Conversion "charted a summary judgment course"; CPLR R. 3212(f)

CPLR R. 3211

CPLR R. 3212

Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 2009 NY Slip Op 03136  (App. Div., 2nd, 2009)

Pav-Co and Fehr argue initially that since they had not yet had the opportunity to answer and conduct discovery, the Supreme Court should not have addressed the merits of this dispute in the course of resolving the parties' various motions and cross motions. The short answer to this contention is that by arguing the merits of their respective positions on the basis of factual affidavits and extensive documentary evidence, the parties charted a summary judgment course and [*8]cannot be heard to complain that the Supreme Court addressed their motions under the summary judgment standard (see Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d 500, 502; Doukas v Doukas, 47 AD3d 753; Harris v Hallberg, 36 AD3d 857, 858). Moreover, the record reflects that all of the parties had ample opportunity in the course of the extensive motion practice before the Supreme Court to submit whatever evidentiary material they deemed appropriate to support their substantive assertions with respect to the issue of liability. As to their claimed need for discovery, these defendants failed to satisfy their burden of offering "an evidentiary basis to suggest that discovery may lead to relevant evidence" or that "facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760; see Torres v American Bldg. Maintenance Co. of NY, 51 AD3d 905, 906; Alizio v Perpignano, 39 AD3d 781, 784). As we note below, however, upon remittal, the Supreme Court may, in its discretion, deem additional discovery necessary with respect to the issue of damages.

Northeast and Zorn argue that our dismissal of The Hamlet's previous appeal from an order dated August 10, 2006, in which the Supreme Court addressed the issue of conversion, by reason of The Hamlet's failure to perfect that appeal, precludes our review of that issue on The Hamlet's cross appeal from the order dated May 5, 2006, in which the same issue was decided. That contention is incorrect. As a general rule, we do not consider issues that were raised, or could have been raised, in a previous appeal which was dismissed for lack of prosecution, although we have inherent jurisdiction to do so (see Bray v Cox, 38 NY2d 350; DiGiaro v Agrawal, 41 AD3d 764, 765). Here, however, the opposite situation is presented. The order and the judgment under review in Appeals No. 1 and 2 were entered in May 2006, while the dismissed appeal was from a subsequent order entered in August 2006. While the better practice would have been to withdraw the subsequent appeal, The Hamlet is not precluded from raising its arguments with respect to the conversion cause of action on the present cross appeal, which is taken from the earlier order and judgment (cf. Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 753-754).

CPLR R. 3212(f)

Sanabria v Paduch, 2009 NY Slip Op 03151 (App. Div., 2nd, 2009)

The defendant did not submit an affidavit setting forth his version of the occurrence. The motion was opposed solely by an affirmation of counsel, which was insufficient to raise a triable issue of fact (see Wesh v Laidlaw, 59 AD3d 534; Prince v Accardo, 54 AD3d 837, 838). The defendant failed [*2]to make an evidentiary showing that discovery would yield material and relevant evidence (see LKE Family Limited Partnership v Gillen Living Trust, 59 AD3d 602; Board of Managers of Park Regent Condominium v Park Regent Unit Owners Assoc., 58 AD3d 589; Phelan v Huntington Tri-Vil. Little League, Inc., 57 AD3d 503, 505). The defendant's contentions regarding discovery were mere expressions of hope and speculation that a deposition of the plaintiff might disclose relevant information sufficient to defeat the motion (see Brewster v Five Towns Health Care Realty Corp. 59 AD3d 483; Lauriello v Gallotta, 59 AD3d 497; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621).

While Sanabria doesn't specifically refer to 3212(f), that's what they Court is referring to.

Seye v Sibbio, 2009 NY Slip Op 03153 (App. Div., 2nd, 2009)

In response to Sibbio's prima facie demonstration of his entitlement to judgment as a matter of law (see Clark v Davis, 52 AD3d 639; Lewis v Boyce, 31 AD3d 395; Shafqat v Blackman, 16 AD3d 574; Batista v Mohabir, 291 AD2d 365), the plaintiffs submitted evidence sufficient to raise a triable issue of fact (see Andujar v Wylong, 53 AD3d 465). Additionally, the motion was premature since substantial discovery remained outstanding (see CPLR 3212[f]; Patterson v Brennan, 292 AD2d 582).

The bold is mine.