theCPLRblog

App Div 1st declines to decide whether the Sup Ct has the power to review a damages verdict using the CPLR § 5501(c) Std

CPLR § 5501 Scope of review

(c) Appellate division. The appellate division shall review questions of law and questions of fact on an appeal from a judgment or order of a court of original instance and on an appeal from an order of the supreme court, a county court or an appellate term determining an appeal. The notice of appeal from an order directing summary judgment, or directing judgment on a motion addressed to the pleadings, shall be deemed to specify a judgment upon said order entered after service of the notice of appeal and before entry of the order of the appellate court upon such appeal, without however affecting the taxation of costs upon the appeal. In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

Delacruz v Port Auth. of N.Y. & N.J., 2009 NY Slip Op 04124 (App. Div., 1st, 2009)

The stipulated increase in damages for past pain and suffering, undertaken at the court's urging and as an alternative to a new trial, was warranted (see Newman v Aiken, 278 AD2d 115 [2000]). In reviewing plaintiff's motion to set aside the award of past pain and suffering, Supreme Court employed the "deviates materially from reasonable compensation" test specified by CPLR 5501(c). That statute provides the Appellate Division with the power to review a damages verdict under that standard; it does not expressly provide Supreme Court with similar review power. Whether Supreme Court was authorized to review the award for past pain and suffering under the standard provided by CPLR 5501(c) or was required to review the award under a more restricted standard, e.g. "shocks the conscience" (compare Ashton v Bobruitsky, 214 AD2d 630 [1994]; Prunty v YMCA of Lockport, Inc., 206 AD2d 911 [1994] and Cochetti v Gralow, 192 AD2d 974 [1993], with Lauria v New York City Dept. of Environmental Protection, 152 Misc 2d 543 [1991]; see Siegel, NY Practice § 407 [4th ed]), is an issue we need not decide. Under our own review pursuant to CPLR 5501(c), we conclude that the jury's award for past pain and suffering of $25,000 deviates materially from reasonable compensation, and that, as Supreme Court found, $75,000 is reasonable compensation (see generally Donatiello v City of New York, 301 AD2d 436 [2003]).

This case is interesting for what the Court declined to decide.

The bold is mine.

Qualified Privilege and Hearsay

Garcia v Puccio, 2009 NY Slip Op 04121 (App. Div., 1st, 2009)

On a prior appeal in this action (17 AD3d 199 [2005]), we found that plaintiff, a teacher, stated a cause of action for defamation where he alleged that defendant Puccio told a student's parent that plaintiff had been accused of corporal punishment before. We noted that defendants' claims of truth and qualified privilege were affirmative defenses to be raised in the answer and that "[d]efendants may then move for summary judgment on any such defense available to them and, upon their making a prima facie showing of truthfulness or qualified privilege, the burden would shift to plaintiff" (id. at 201).

Defendants' summary judgment motion included Ms. Puccio's unequivocal denial of making the subject statement, establishing a prima facie showing of a lack of the requisite publication of a defamatory statement (see Parker v Cox, 306 AD2d 55 [2003]; Snyder v Sony Music Entertainment, Inc., 252 AD2d 294, 298 [1999]). In opposition, plaintiff failed to establish a triable issue of fact as to whether the alleged statement was made and published (see id.; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Rather, plaintiff offered only hearsay, i.e., an out-of-court statement by the parent's mother that Ms. Puccio had made the alleged statement. The statement by the mother that Ms. Puccio made the statement was offered for its truth (i.e., that Ms. Puccio had made the statement). The only statement Ms. Puccio admitted making, that she told the parent that there were "problems" or "problemas" with plaintiff, was a true statement made in response to a direct question, without any elaboration, was not susceptible of a defamatory meaning and did not constitute defamation (see Dillon v City of New York, 261 AD2d 34, 38 [1999]). In any event, the statement would be protected by a qualified privilege, having been made by a high school principal to a student's parent who had a [*2]common interest in the subject matter of the conversation (see Garcia v Puccio, 17 AD3d at 201; Hoesten v Best, 34 AD3d 143, 157-158 [2006]).

The bold is mine.

"At issue" waiver of 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

Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 2009 NY Slip Op 04099 (App. Div., 1st, 2009)

We find no merit to defendant's argument that privileged materials relating to and created after commencement of the Doctor's Hospital Action have been put "in issue" by this litigation and are therefore discoverable. Such argument fails to recognize that nothing that plaintiff's attorneys could have said or done in the prior lawsuit could have possibly affected plaintiff's reliance on defendant's allegedly erroneous advice given years earlier in connection with the [*2]formation of the D5 Trust. " At issue' waiver of [the attorney-client] privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63 [2007]). While any communications between plaintiff and its attorneys in the Doctor's Hospital Action that evaluated defendant's prior advice in the allegedly bungled D5 Trust transaction are certainly relevant to the issue of defendant's alleged malpractice, plaintiff disavows any intention to use such communications and defendant fails to show that any such communications are necessary to either plaintiff's claim or its defense (see id. at 64 [relevance alone insufficient to put privileged materials "at issue"; "if that were the case, a privilege would have little effect"]; see also Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 374 [2008]). Nor does the question of the reasonableness of the settlement amount that plaintiff seeks to recover, without more, put plaintiff's privileged communications with its attorneys concerning the settlement "in issue" (Deutsche Bank, 43 AD3d at 57). No reason appears why the reasonableness of the settlement cannot be determined with the copious materials that defendant has already received, including otherwise privileged communications, dating from before the commencement of the Doctor's Hospital Action. We have considered defendant's other arguments and find them unpersuasive.

The bold is mine.

CPLR R. 6312 Preliminary Injunction requires undertaking; is not final disposition

CPLR R. 6312 Motion papers; undertaking; issues of fact

(b) Undertaking. Except as provided in section 2512, prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction...

Pamela Equities Corp. v 270 Park Ave. Café Corp., 2009 NY Slip Op 04166 (App. Div., 1st, 2009)

The court exercised its discretion in a provident manner in granting the injunctive relief since plaintiff demonstrated a likelihood of success on the merits, irreparable injury based on further damage to the building if the necessary repairs are not made and that a balancing of the equities weighs in its favor (see generally Doe v Axelrod, 73 NY2d 748, 750 [1988]; see also Huron Assoc. LLC v 210 E. 86th St. Corp., 18 AD3d 231 [2005]; 1500 Broadway Chili Co. v Zapco 1500 Inv., 259 AD2d 257 [1999]). However, because CPLR 6312(b) requires that plaintiff post an undertaking in an amount to be fixed by the court, the matter is remanded to the motion court to set an amount that reflects the damages that defendant may incur (see Visual Equities v Sotheby's, Inc., 199 AD2d 59 [1993]).

Although the injunctive relief was appropriately granted, "[a] preliminary injunction is a provisional remedy. Its function is not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits" (Residential Bd. of Mgrs. of Columbia Condominium v Alden, 178 AD2d 121, 122 [1991]). Thus, to the extent the motion court's order indicated that it was a final disposition, it was in error.

The bold is mine.

CPLR § 3101(d)

CPLR § 3101 Scope of disclosure

(d) Trial preparation

Hernandez v Vavra, 2009 NY Slip Op 04161 (App. Div., 1st, 2009)

In light of the inconsistency between the information contained on the face of defendants' CPLR 3101(d) notice pertaining to their expert neuropsychologist, and the substance of the expert's proposed testimony as clarified on voir dire, the trial court providently exercised its discretion in permitting the neuropsychologist to testify as to the results of his interview of plaintiff, while precluding him from testifying as to the results of neuropsychological tests he performed on plaintiff (see Inwood Sec. Alarm, Inc. v 606 Rest., Inc., 35 AD3d 194 [2006]).

CPLR § 205(a)

CPLR § 205 New action by plaintiff

As you may recall, CPLR §  205(a) was recently amended giving failure to prosecute dismissals the benefit of 205(a)'s tolling provision, provided certain conditions are satisfied.  This amendment was the subject of a recent NYLJ article by David Siegel.  I posted about about it here.  Justice Lehner addressed this issue in one of the first cases to meet the issue head on.

Stora v City of New York, 2009 NY Slip Op 29213 (Sup Ct, NY County, 2009)

Here I dismissed the initial action without making any finding of a pattern of delay. However, I believe that a judge hearing the second action can review the record of the initial action to determine such issue when no adjudication thereon was made in that action. From an examination of the papers submitted on these motions, it does not appear that plaintiff's defaults were wilful or in bad faith and rise to the level of conduct that warrants the type of sanction imposed in Andrea. Hence, defendants' application that the court should find that the dismissal in September 2008 was for lack of prosecution, and that thus the action is time barred, is denied.

Critics of the Amendment have questioned why it was added to § 205 (a), rather than § 3216, which details the statutory means of obtaining a dismissal for want of prosecution. See, Siegel "Amendment Bars 'Neglect to Prosecute' Dismissal," NYLJ, Sept. 15, 2008, p. 4, c. 4; New York State Bar Association's Committee on Civil Practice Law and Rules memorandum dated July 1, 2008, in opposition to the Amendment. The reason would appear to be that by the inclusion of the word "otherwise" in the Amendment, the legislature intended the requqisite finding of delay be made not only in cases of dismissals under § 3216, but also in all cases where want of prosecution is the basis for the prior dismissal. Such situations would thus include dismissals i) for failure to provide discovery, as in Andrea; ii) for failure to appear for trial, as in Macaluso v. Statfeld, 295 AD2d 147 (1st Dept. 2002) and Morris v. Start, 268 AD2d 787 (3rd Dept. 2000); and iii) under CPLR 3404, which specifically states that a failure to restore a case to the calendar within a year after being marked "off" is a "neglect to prosecute" [see, Pomerantz v. Cave, 10 AD2d 569 (1st Dept. 1960); Siegel; New York Practice, 4 ed., § 376].

While it may in future cases be argued that by inserting the Amendment in

§ 205 (a) it was the intent of the legislature to limit the requirement for a finding of a general pattern of delay to situations where a plaintiff was seeking to obtain the benefit of the six month extension, and not to invalidate all dismissals not containing the finding, that is certainly not clear from the sponsoring memorandum submitted in support of the bill (A750) containing the proposed amendment to § 205 (a), where Assemblyman Keith Wright stated the following:

PURPOSE OR GENERAL IDEA OF BILL:

Establishes a requirement that when a dismissal is one for neglect to prosecute an [*4]action the judge must set forth on the record the specific conduct constituting the neglect. The conduct specified must demonstrate a general pattern of delay in proceeding with the action before a neglect to prosecute dismissal is warranted.

JUSTIFICATION:

This bill sets forth a resolution to a persistent problem within our courts regarding dismissal for neglect to prosecute the action.

The intent of CPLR § 205 (a) has been misconstrued allowing for many cases to be dismissed on the basis of neglect to prosecute. The law is presently unclear with respect to what specifically constitutes a neglect to prosecute particularly where it falls outside Rule 3216.

Amending CPLR § 205 (a) to provide uniformity would reestablish the original legislative intent of this chapter.

An identical memorandum was submitted by Senator Dale Volker in support of the Senate bill (S2677).

In any event, it would seem that any defendant concerned about a plaintiff obtaining the benefit of a § 205 (a) extension after a dismissal on any grounds that could be deemed to be a neglect of prosecution would be wise to request at the time of dismissal that the court issue an adjudication on the issue of general delay.

While it has been suggested that the adoption of the Amendment was an attempt to legislatively overrule the 2005 Court of Appeals decision in Andrea, that would not appear to be the specific intention of the Assembly sponsor as he had introduced a similar bill in each session of the legislature since 1993. It is noted that, notwithstanding the opposition of the aforesaid State Bar Association Committee, the Amendment passed with nary a negative vote in either chamber of the legislature.

Although judgments on default can have res judicata effect [see, Lazides v. P & G Enterprises, 58 AD3d 607 (2nd Dept. 2009); Allstate Insurance Company v. Williams, 29 AD3d 688 (2nd Dept. 2006); Robbins v. Growney, 229 AD2d 356 (1st Dept. 1996)], as can an order of preclusion [see, Strange v. Montefiore Hospital and Medical Center [59 NY2d 737, 739 (1983)], defendants have not raised that issue herein (tr. pp. 12-13). In any event, it has been held that "[w]here a plaintiff's noncompliance with a disclosure order does not result in a dismissal with prejudice, or an order of preclusion or summary judgment in favor of defendant so as to effectively close plaintiff's proof, dismissal resulting from noncompliance is not a merits determination so as to bar commencement of a second action" [Maitland v. Trojan Electric & Machine Co., Inc., 65 NY2d 614, 615-616 (1985)]. See also, Daluise v. Sottile, supra, at p. 802; Downtown Acupuncture P.C. v. State Farm Mutual Automobile Ins. Co., 20 Misc 3d 137 (A), 2008 WL 2831979. (App. Term 2nd & 11th Districts).

In conclusion, since I have found that my dismissal of the initial action cannot be said to have been based on a lack of prosecution, the motions of defendants to dismiss are denied. This decision constitutes the order of the court.

Look for posts tomorrow. Maybe later today

 A lot of good stuff has come out in the past few weeks, but I've been busy lawyering, tinkering with my other blog and trying to figure out wordpress, among other things. Today, I built a house.  That was a gigantic pain in the ass.  You see those stairs to the right of the dog?  He is petrified of going up or down them.  Petrified. 

A Look at the Appellate Division (1st) from the Inside

Tomorrow's May 13th's New York Law Journal has a great article on the inner-workings of the Appellate Division.  Justice David B. Saxe, of the Appellate Division, First Department, writes about how the Justices prepare for arguments, procedural issues, and how the senority affects the order that the Justices enter the courtroom.  The title of the article is: How We Operate: An Inside Look at the Appellate Division, First Department. 

And best of all...the article is free.

Here are some excerpts.

A new justice cannot help but immediately notice that virtually every formal act of the court, and most informal acts as well, require recognition of the justices' seniority. For purposes of constituting panels, the court's presiding justice (P.J.) is followed by the other six "constitutional"¹ justices in the order in which they were designated to the court. They are followed by the certificated² justices and the "additional justices,"³ in the order in which they were designated to the court. Notably, for other purposes, such as the assignment of chambers, seniority is solely by date of designation to the court, and it is irrelevant whether a justice is certificated. Seniority also dictates where each justice sits on the bench for oral argument, in the conference room with the panel after argument, in the conference room with the full bench, and to some extent even in the lunch room.

It is the tradition at the First Department that most internal documents, such as memoranda, calendars and schedules, refer to the justices by their initials rather than their full names, presumably for the sake of brevity. For those documents, I am not David B. Saxe, I am DBS. This procedure may be useful in ensuring there is no confusion between two justices who have the same or similar last names, such as Justices David Friedman (DF) and Helen E. Freedman (HEF); however, it can be singularly problematic where two justices' initials are identical, as with Richard T. Andrias and Rolando T. Acosta. Nevertheless, the tradition is so firmly etched into the court's procedures that it is the justices who must be flexible; Justice Andrias, as the more senior justice, is indicated by his initials RTA, while Justice Acosta, as the more junior justice, must forgo the use of his middle initial, and be known by the initials RA.

...

Preparing for Argument: In advance of each panel sitting, each justice on the panel will be provided with the briefs and records of the cases that are scheduled for that particular panel day. Each justice is advised to maintain an area in chambers to put the briefs and records for the next upcoming sitting date, where they will be available for easy access, and be placed in the order that they will appear on that day's calendar.

Chambers will also receive, in advance of the calendar date, a bench memo for most⁵ appeals on that calendar, each prepared by a court attorney - that is, one of a pool of attorneys in our law department whose primary function in the court is the preparation of such bench memos. These bench memos, often referred to as "reports," consist of a complete discussion of the facts, the decision of the lower court, the contentions on appeal, the relevant law, and a legal analysis. The court attorney will also provide a recommendation as to the suggested disposition of the appeal (i.e., affirmance, reversal, modification, etc.) and usually the bench memo will be accompanied by a short memorandum decision. Due to the internal procedures followed by our law department, a senior supervising court attorney who reviews the bench memo and recommendation may differ with the recommendation or reasoning of the court attorney.

...

Procedures After Argument: After a brief break, the panel convenes in our second floor conference room to vote on that days' appeal calendar. If the P.J. is on the panel, he or she is seated in the center seat of our long rectangular conference table, with the two most senior justices to his immediate right and the two most junior justices opposite them. If the P.J. is not on that day's panel, the J.P. of the panel sits in the seat to the immediate right of the center seat, the next two senior justices on the panel sit to the immediate right of the J.P., and the two most junior justices sit in the two seats directly opposite the seats occupied by the J.P. and the next most senior justice.

The justices generally bring to conference a folder containing their court attorney reports, a copy of that day's calendar on which is noted the initials of the justice assigned as the reporting justice for each appeal, and a loose-leaf binder that contains what we call our "bible sheets." A bible sheet is created for each appeal, and it contains the name of the case and its appeal number, the names of counsel, the initials of the court attorney who prepared the report and the names of the justices who sat on that case, with the reporting justice's name indicated by asterisks. As is perhaps suggested by its name, the bible sheet becomes the framework for the work that follows.

CPLR R. 3212

Robinson v Yeager, 2009 NY Slip Op 03710 (App. Div., 2nd, 2009)

The defendant failed to meet his 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 his motion, the defendant relied upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell and Dr. Rene Elkin. In those reports, Dr. Elkin noted significant limitation in the plaintiff's cervical spine, and Dr. Purcell noted significant limitation in the plaintiff's right shoulder (see Giacomaro v Wilson, 58 AD3d 802; Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472). Since the defendant failed to meet his prima facie burden, it is unnecessary to decide whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Giacomaro v Wilson, 58 AD3d 802; Coscia v 938 Trading Corp., 283 AD2d 538).

The bold is mine.

CPLR § 213

CPLR § 213 Actions to be commenced within six years

Prand Corp. v County of Suffolk, 2009 NY Slip Op 03708 (App. Div., 2nd, 2009)

blockquoteA cause of action for rescission based on mistake runs from the date of the alleged mistake or actionable wrong (see CPLR 213[6]; Zavaglia v Gardner, 245 AD2d 446). Here, the cause of action for rescission of the contract accrued on the date that the price was set in the contract, which was the date when the contract was fully executed (see Zavaglia v Gardner, 245 AD2d 446; cf. First Natl. Bank of Rochester v Volpe, 217 AD2d 967, 968). Consequently, the cause of action seeking rescission of the contract of sale on the ground of mutual mistake, which was brought more than six years after the contract was fully executed, was untimely (see Zavaglia v Gardner, 245 AD2d 446).

A cause of action alleging fraud is timely if it is commenced either within six years from the time of the fraud, or within two years after the plaintiff discovers, or with reasonable diligence could have discovered, the fraud (see CPLR 213[8]; Pericon v Ruck, 56 AD3d 635, 636; Oggioni v Oggioni, 46 AD3d 646, 648; Town of Poughkeepsie v Espie, 41 AD3d 701, 705; Shannon v Gordon, 249 AD2d 291, 292). The test as to when a plaintiff, with reasonable diligence, could have discovered an alleged fraud is an objective one (see Prestandrea v Stein, 262 AD2d 621, 622). Here, notice to the plaintiff of the Attorney General's action in 2002 clearly triggered a duty on the part of the plaintiff to inquire as to potential fraud with respect to the contract of sale (see Shannon v Gordon, 249 AD2d at 292; cf. Pericon v Ruck, 56 AD3d at 636). Inasmuch as the plaintiff did not commence the instant action until more than six years after the time of the alleged fraud, and more than two years after the plaintiff, with reasonable diligence, could have discovered the alleged fraud, the cause of action for rescission based upon fraudulent inducement is barred by the statute of limitations (see CPLR 213[8]; Oggioni v Oggioni, 46 AD3d at 648).blockquote

The bold is mine.