theCPLRblog

CPLR R. 2221CPLR § 2001

CPLR § 2001 Mistakes, omissions, defects & irregularities

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue

Ayoub v Ayoub, 2009 NY Slip Op 05164 (App. Div., 1st, 2009)

The preliminary conference order indicated that the issue of equitable distribution was resolved and that all financial and property issues except for child support were resolved by the parties' prenuptial agreement. In her motion to modify the preliminary conference order, plaintiff did not demonstrate good cause (see 22 NYCRR 202.16[f][3]) to raise the issue of equitable distribution of the marital residence. Indeed, contrary to her contention, the prenuptial agreement is clear that the only property subject to equitable distribution is that titled in joint names, of which there is none. While the agreement contains a separate section dealing with a marital residence, the plain language of paragraph 4 of that section provides for equitable distribution only if "the Marital Residence is purchased as Jointly Owned Property."

Nor is relief available under CPLR 2001, since the waiver of the issue of equitable distribution in the preliminary conference order was not simply a slight mistake (see People ex rel. Di Leo v Edwards, 247 App Div 331 [1936]). Similarly, no relief is available under CPLR 2221. In her motion papers, plaintiff did not even assert that the preliminary conference order reflected a misapprehension of law or facts. Furthermore, the court correctly found that plaintiff's hiring of new counsel did not present a new fact permitting her to revisit the issues resolved in the preliminary conference order

Caraballo v Kim, 2009 NY Slip Op 05279 (App. Div., 2nd, 2009)

The medical report of the injured plaintiff's treating chiropractor, Dr. Alan C. Berger, dated May 8, 2006, did not constitute evidence competent to oppose the defendants' motion because it was unaffirmed (see Grasso v Angerami, 79 NY2d 813; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

...

The affirmation of Dr. Stuart I. Springer, the injured plaintiff's treating physician, also failed to raise a triable issue of fact...

The affirmed magnetic resonance imaging reports of Dr. Mark Shapiro and Dr. Marc Liebeskind merely revealed the existence of disc bulges at L3-4 and L4-5, a disc herniation at L5-S1, possible tears in the posterior horns of the medial menisci of the right and left knees, and a possible tear (rupture) of the anterior cruciate ligament in the left knee. This Court has held that a herniated or bulging disc, or even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d 1085, 1087; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583). A tendon is defined as "[t]he cord of tough connective tissue which forms the end of a muscle and which connects the muscle to the bone" (5-T-TG Attorneys' Dictionary of Medicine [2005 ed] at 974). Tendons "are bands of fibrous connective tissue" (5-15A Attorneys' Textbook of Medicine [3d ed] at 15A.10). A ligament is defined as "[a] band of tough but flexible tissue which serves to connect bones (as in the formation of a joint), to hold organs in place, etc." (3-L Attorneys' Dictionary of Medicine [2005 ed] at 2302). Ligaments, like tendons, are "bands of tough, fibrous connective tissue" (4-13 Attorneys' Textbook of Medicine [3d ed] at 13.10). Thus, injuries involving tendons and ligaments must be treated similarly under Insurance Law § 5102(d). Evidence of the extent and duration of any alleged limitation arising from injury to the plaintiff's discs or ligaments was clearly lacking here. The deposition testimony of the injured plaintiff was insufficient to supply such evidence (see Washington v Mendoza, 57 AD3d 972).

...

The Supreme Court providently exercised its discretion in denying the plaintiffs' motion for leave to renew their opposition to the defendants' motion for summary judgment (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Ramirez v Khan, 60 AD3d 748; Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744). While it may be within the court's discretion to grant leave to renew upon facts known to the moving party at the time of the original motion (see Ramirez v Khan, 60 AD3d 748; J.D. Structures v Waldbaum, 282 AD2d 434; Cronwall Equities v International Links Dev. Corp., 255 AD2d 354), a motion for leave to renew " is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'" (Renna v Gullo, 19 AD3d at 472, quoting Rubinstein v Goldman, 225 AD2d 328, 329; see Ramirez v Khan, 60 AD3d 748; O'Dell v Caswell, 12 AD3d 492; Hart v City of New York, 5 [*3]AD3d 438; Carota v Wu, 284 AD2d 614). In this case, the plaintiffs failed to provide reasonable justification for the failure to include the findings in the supplemental affidavit of Dr. Berger on the original motion (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472).

The bold is mine.

CPLR § 5701(a)(2)

CPLR § 5701 Appeals to appellate division from supreme and county courts
(a) Appeals as of right
(2) from an order not specified in subdivision (b), where the motion it decided was made upon notice...

Rabinovich v Shevchenko, 2009 NY Slip Op 05310 (App. Div., 2nd, 2009)

The order appealed from did not determine a motion made on notice, and is therefore not appealable as of right (see CPLR 5701[a][2]; Steven L.Levitt & Assoc., P.C. v Computer Handlers Corp., 7 AD3d 613; Johnson v Ladin, 7 AD3d 674, 675; Stern v Stern, 273 AD2d 298, 299; Cuffie v New York City Health & Hosps. Corp., 260 AD2d 423). No motion for leave to appeal has been made, and under the circumstances, we decline to grant leave on our own motion (see Independence Constr. Corp. v AMOCO Constr. Corp., 33 AD3d 963; Steven L.Levitt & Assoc., P.C. v Computer Handlers Corp., 7 AD3d 613; Cuffie v New York City Health & Hosps. Corp., 260 AD2d 423).

The bold is mine.

Sua Sponte Dismissal Improper (in this case)

Mingrino Indus. 2000, Inc. v Pustilnikov, 2009 NY Slip Op 04875 (App. Div., 2nd, 2009)

In the absence of notice to the parties and an application by the defendants for such relief, the Supreme Court erred in, sua sponte, directing the dismissal of the complaint (see Ambrosino v Village of Bronxville, 58 AD3d 649; During v City of New Rochelle, N.Y., 55 AD3d 533, 534; Abinanti v Pascale, 41 AD3d 395, 396). In effect, the Supreme Court deprived the parties of the opportunity to submit their proof (see Jacobs v Mostow, 23 AD3d 623, 624; Sena v Nationwide Mut. Fire Ins. Co., 198 AD2d 345, 346).

The defendants' contention regarding the statute of limitations is not properly before this Court (see DeLeonardis v Brown, 15 AD3d 525, 526).

A little procedural background would have been nice.

Procedural Stuff, Forum Non Con, and Res Judicata

Fischer v Crossard Realty Co., Inc., 2009 NY Slip Op 04968 (App. Div., 1st, 2009)

An issue of fact as to whether defendant had notice of the claimed misleveling is raised by the elevator's service records, as clarified by the testimony of the elevator maintenance company's president and the affidavit of plaintiff's expert. Defendant's argument that plaintiff's testimony shows that she fell not because of any misleveling, but when she tried to quickly move out of the way of elevator doors that allegedly were closing prematurely and frightened her, was improperly raised for the first time in its reply papers before the motion court, and we decline to consider it (see Azzopardi v American Blower Corp., 192 AD2d 453, 454 [1993]).

Johansen v Gillen Living Trust, 2009 NY Slip Op 05295 (App. Div., 2nd, 2009)

The doctrine of res judicata provides that "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485; see Matter of People v Applied Card Sys., Inc., 11 NY3d 105, 122; Sandhu v Mercy Med. Ctr., 54 AD3d 928; Barbieri v Bridge Funding, 5 AD3d 414). Here, each cause of action pleaded by the plaintiffs was determined on the merits by the Supreme Court in a prior action, either as a primary or alternative ground (see Matter of People v Applied Card Sys., Inc., 11 NY3d at 122; Gramatan Home Invs. Corp. v Lopez, 46 NY2d at 485; Sandhu v Mercy Med. Ctr., 54 AD3d 928). Furthermore, the plaintiffs in the instant action were in privity with the plaintiff in the prior action, as the plaintiffs herein exercised control over the prior action and ensured that their interests were represented therein (see Buechel v Bain, 97 NY2d 295, 304-305; Evergreen Bank v Dashnaw, 246 AD2d 814, 816-817; cf. Green v Santa Fe Indus., 70 NY2d 244, 253-254). Accordingly, the Supreme Court properly granted that branch of the defendants' cross motion which was to dismiss the complaint on the ground that the action was barred by the doctrine of res judicata.

Atlantic Credit & Fin., Inc. v Rivera, 2009 NY Slip Op 51148(U) (App. Term, 2nd, 2009)

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated upon the subsequent entry of a default judgment in this action (see Matter of Aho, 39 NY2d 241 [1976]; Woodhaven Assoc., Inc. v Woodhaven Blvd. Rest., Inc., 46 AD3d 679 [2007]; Fordham Gen. Constr. Co., Inc. v White, 12 Misc 3d 127[A], 2006 NY Slip Op 50914[U] [App Term, 2d & 11th Jud Dists 2006]). We note that a party may appeal from a judgment entered upon his default for the purpose of bringing up for review a prior contested order which necessarily affects the final judgment (see James v Powell, 19 NY2d 249 [1967]; Conserv Elec., Inc. v Tulger Contr. Corp., 26 AD3d 354 [2006]). 

Uvaydov v Wexley, 2009 NY Slip Op 04893 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion, upon the defendant's cross motion and upon reviewing the appropriate factors, in declining to exercise jurisdiction over that branch of the plaintiff's motion which was to modify a prior custody order on the ground that New York is an inconvenient forum and that California is a more appropriate forum (see Domestic Relations Law § 76-f; Matter of Erlec v Johnson, 58 AD3d 730; Matter of Hall v Hall, 44 AD3d 771; Clark v Clark, 21 AD3d 1326).

The bold is mine.

Experts & CPLR R. 2106

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

Todman v Yoshida, 2009 NY Slip Op 05257 (App. Div., 1st, 2009)

The court correctly precluded the testimony of plaintiff's expert toxicologist. The foundation for the expert's opinion that plaintiff's alleged health condition was caused by toxic chemicals contained in the wood-stripping agents used by defendant Yoshida in an apartment in the building owned by Brown and Cook-Brown lacked the "specific causation" component, i.e., that plaintiff was exposed to levels of the toxins sufficient to cause the condition (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). While "not required to pinpoint exposure with complete precision," the expert failed even to offer a "scientific expression" of plaintiff's exposure (id. at 449).

He neither provided a measurement of plaintiff's exposure nor employed any of the available methods for reasonably estimating it, such as mathematical modeling or comparing plaintiff's exposure level to those of study subjects whose exposure levels were precisely determined. Absent was any statement that the chemicals in question are capable of causing injury at even the lowest exposure level.

In his affidavit submitted in opposition to defendants' motion, the expert also failed to provide any measurement or estimate of plaintiff's exposure to the subject toxins. While he opined, based on the manner in which Yoshida used the wood-stripping agents, that Yoshida's exposure to the toxins contained in those agents exceeded the limits set by OSHA, "standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate legal causation" (id. at 450). Furthermore, he failed to state any relationship between Yoshida's exposure and that of plaintiff, who occupied a different apartment.

Ortiz v Ash Leasing, Inc., 2009 NY Slip Op 05168 (App. Div., 1st, 2009)

Ortiz's doctor's conclusory statement in July 2008 that the knee operation was related to the August 3, 2006 accident is contradicted by August 30, 2006 X-rays and a September 18, 2006 MRI showing degenerative changes (see Thompson, 15 AD3d at 99), and the doctor's "failure even to mention, let alone explain, why he ruled out degenerative changes as the cause of plaintiff's knee . . . injuries, rendered his opinion that they were caused by the accident speculative" (Valentin v Pomilla, 59 AD3d 184, 186 [2009]; see also Perez v Hilarion, 36 AD3d 536, 537 [2007]).

Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC, 2009 NY Slip Op 04950 (App. Div., 1st, 2009)

Plaintiff's argument that the court abused its discretion by precluding their expert from testifying as to future costs is preserved (see CPLR 5501[a][3]; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 382 [1983]). "Given the lengthy colloquy on the subject, the court obviously was aware of the nature of the objection and, more importantly, it recognized that the issue would be subject to appellate review" (Gallegos v Elite Model Mgt. Corp., 28 AD3d 50, 59 [2005]).

While the "qualification of an expert witness is within the court's sound discretion, and its determination will not be disturbed in the absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Issacs v Incentive Sys., 52 AD2d 550 [1976]). Licensed professionals acting as experts have been found qualified to give their opinions regarding future or estimated costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with estimating costs. The computer database utilized by plaintiff's expert to prepare pre-bid cost estimates was based on the same methodology employed in connection with the completed remediation work — specifications and bids of hundreds of prior projects on which the expert had worked. Furthermore, "any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony," and could have been cured with a limiting instruction to the jury (see Moon Ok Kwon v Martin, 19 AD3d 664 [2005]).

K & J/Gonzalez's argument that it is entitled to set off against the $2,059,692.09 jury verdict the $1,960,000 received from the settling codefendants is unsupported by the record (see e.g. Promenade v Schindler El. Corp., 39 AD3d 221, 222-223 [2007], lv dismissed 9 NY3d 839 [2007]). Based on the explicit language of the second amended complaint, the verdict sheet and the settling agreements, there is no basis for concluding that the jury allocated damages to these defendants based on the same claims or injuries by which plaintiff had entered into its agreements with the settling codefendants. Plaintiff's Amended CPLR 3101(d) Expert Disclosure clearly indicated that this expert's testimony would address construction defects caused by K & J and the "costs to remedy" those defects.

Maffei v Santiago, 2009 NY Slip Op 05298 (App. Div., 2nd, 2009)

The medical reports of Dr. James McWilliam were without any probative value in opposing the defendants' motion because they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; [*2]Pagano v Kingsbury, 182 AD2d 268).

Finally, the plaintiff's affidavit was insufficient to raise a triable issue of fact (see Thomas v Weeks, 61 AD3d 961; Luizzi-Schwenk v Singh, 58 AD3d 811; Gochnour v Quaremba, 58 AD3d 680).

The bold is mine.

CPLR § 3013: No Private Right of Action via Alcoholic Beverage Control Law

CPLR § 3013 Particularity of statements generally

Victoria T. Enters., Inc. v Charmer Indus., Inc., 2009 NY Slip Op 04820 (App. Div., 4th, 2009)

Plaintiff commenced this action seeking damages allegedly "arising out of defendants' long-standing deceptive pricing practices, unfair trade and monopolistic business practices" in the wine and liquor industry. Plaintiff appeals from an order that, inter alia, granted the motion of defendants-respondents (defendants) to dismiss the amended complaint against them. We affirm. Contrary to plaintiff's contention, Supreme Court properly granted that part of the motion to dismiss the causes of action based on alleged violations of the Donnelly Act (General Business Law § 340 et seq.) and the Alcoholic Beverage Control Law for failure to state a cause of action. The majority of the allegations in the amended complaint contain no more than a vague and conclusory repetition of the statutory language without reference to date, time or place, and thus the allegations are insufficiently particular to state a cause of action under either of those statutes (see CPLR 3013; see generally Cole v Mandell Food Stores, 93 NY2d 34, 40; New Dimension Solutions, Inc. v Spearhead Sys. Consultants [US], Ltd., 28 AD3d 260; [*2]Fowler v American Lawyer Media, 306 AD2d 113).

The sole allegation in the amended complaint that refers to a specific defendant and an arguably specific event is that defendant Service-Universal Distributors, Inc. (Service-Universal) "had a virtual monopoly on the sale of Absolut[] vodka, the largest volume vodka import in the United States at the time[, and that Service-Universal] would often tie in the sale of . . . a less popular brand[] to the sale of Absolut[], in violation of New York Law." We conclude however, that plaintiff did not thereby state a cause of action pursuant to the Donnelly Act. Tying arrangements are prohibited "when the seller has some special ability-usually called market power-to force a purchaser to do something that he would not do in a competitive market" (Illinois Tool Works Inc. v Independent Ink, Inc., 547 US 28, 36 [internal quotation marks omitted]). Thus, although "some such arrangements are still unlawful, such as those that are the product of a true monopoly or a marketwide conspiracy . . ., that conclusion must be supported by proof of power in the relevant market rather than by a mere presumption thereof" (id. at 42-43). Allegations that a seller controls a specific brand of a product are insufficient to establish that the seller has market power (see generally Sheridan v Marathon Petroleum Co. LLC, 530 F3d 590, 595; Re-Alco Indus. v National Ctr. for Health Educ., 812 F Supp 387, 392), and the amended complaint otherwise fails to allege that Service-Universal or any defendant had the power to control the wine and liquor market. Indeed, with respect to the alleged causes of action for violation of the Donnelly Act, we conclude that the amended complaint merely alleges, in various forms, that plaintiff's competitors were offered a better wholesale price than that offered to plaintiff. Although "plaintiff may have been deprived of certain [profits] as a result of [defendants'] practice[s], [those] losses are clearly not tantamount to injury to competition in the market as a whole and thus do not constitute a cognizable claim under the Donnelly Act" (Benjamin of Forest Hills Realty, Inc. v Austin Sheppard Realty, Inc., 34 AD3d 91, 97).

We reject the further contention of plaintiff that it has a private right of action pursuant to the Alcoholic Beverage Control Law and the regulations adopted pursuant thereto. The statute and regulations do not expressly provide for a private right of action, and thus a private right of action is permitted only in the event that it may fairly be inferred from the legislative history (see Sheehy v Big Flats Community Day, 73 NY2d 629, 633). In determining whether such a right may be fairly inferred, "the essential factors to be considered are: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme" (id.; see CPC Intl. v McKesson Corp., 70 NY2d 268, 276; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 324-325; Niagara Mohawk Power Corp. v Testone, 272 AD2d 910, 911; see also McLean v City of New York, 12 NY3d 194, 200). Contrary to plaintiff's contention, we conclude that no private right of action may be inferred from the legislative history of the Alcoholic Beverage Control Law. "The Legislature enacted the [Alcoholic Beverage Control] Law to promote temperance in the consumption of alcoholic beverages and to advance respect for [the] law' " (DJL Rest. Corp. v City of New York, 96 NY2d 91, 96; see § 2). "[I]t would be inappropriate for [this Court] to find another enforcement mechanism beyond the statute's already comprehensive' scheme . . . [and, c]onsidering that the statute gives no hint of any private enforcement remedy for money damages, we will not impute one to the lawmakers" (Mark G. v Sabol, 93 NY2d 710, 720-721).

The bold is mine.

CPLR § 3126

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

Northfield Ins. Co. v Model Towing & Recovery, 2009 NY Slip Op 04878 (App. Div., 2nd, 2009)

A preliminary conference order dated July 28, 2005, set forth deadlines for discovery including, inter alia, a provision that the plaintiff was to provide, within 30 days of the preliminary conference, its complete claims file, all contracts relating to the subject premises, and responses to any of the demands of the defendant Model Towing and Recovery (hereinafter Model Towing) to the extent not already provided. By order entered December 19, 2006, the Supreme Court, inter alia, directed the parties to appear for a status conference on February 14, 2007, at which time it was anticipated that all discovery would be completed.

The court conducted numerous status conferences throughout 2006 and 2007 to expedite discovery. At the conclusion of a conference on December 12, 2007, after the parties failed to complete discovery, the court issued an order directing, inter alia, that by January 16, 2008, the plaintiff was to produce a certified copy of its claims and underwriting files pertaining to the subject premises, in addition to providing responses to any outstanding discovery requests. In addition, Model Towing was directed to "advise" the plaintiff by letter with respect to the outstanding demands by December 14, 2007. The order also directed that the plaintiff's failure to provide any of the demanded documents would result in preclusion. Model Towing provided a list of 25 outstanding demands to the plaintiff on December 12, 2007, in court. By January 16, 2008, discovery from the plaintiff remained outstanding.

Thereafter, Model Towing moved, inter alia, to strike the plaintiff's complaint pursuant to CPLR 3126 for the plaintiff's failure to comply with discovery demands and discovery orders of the court, including the order dated December 12, 2007. In an order entered August 21, 2008, the court denied the motion, finding that the plaintiff's actions were not willful, contumacious, or calculated to deprive Model Towing of discovery. In the same order, the court set forth a schedule by which the outstanding discovery was to be completed and provided that failure to comply with the schedule would be the basis for a motion for relief pursuant to CPLR 3126.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion (see Kihl v Pfeffer, 94 NY2d 118, 122; Zletz v Wetanson, 67 NY2d 711; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495; Novis v Benes, 268 AD2d 464). Although striking a pleading is a drastic remedy, it is appropriate where there is a clear showing that the failure to comply with discovery demands was willful or contumacious (see Frias v Fortini, 240 AD2d 467; cf. Novis v Benes, 268 AD2d 464). It can be inferred that a party's conduct is willful and contumacious when it repeatedly fails to comply with discovery demands and court orders compelling disclosure without providing a reasonable excuse for noncompliance (see Mei Yan Zhang v Santana, 52 AD3d 484, 485; Dinstber v Geico Ins. Co., 32 AD3d 893; Kroll v Parkway Plaza Joint Venture, 10 AD3d 633, 634; Ordonez v Guerra, 295 AD2d 325; Cutolo v Khalife, 242 AD2d 661; Frias v Fortini, 240 AD2d 467; Kubacka v Town of North Hempstead, 240 AD2d 374). "If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 NY2d at 123).

The plaintiff did not offer a reasonable excuse for failing to comply with Model Towing's repeated discovery demands or the orders of the court directing compliance with those demands. Accordingly, it was an improvident exercise of discretion to deny Model Towing's motion to unconditionally strike the complaint (see Hanlon v Rosenthal, 7 AD3d 758; Smith v Eastern Long Is. Hosp., 263 AD2d 477).

IDT Corp. v Morgan Stanley Dean Witter & Co., 2009 NY Slip Op 05253 (App. Div., 1st, 2009)

IDT alleges that Morgan Stanley produced more than 2,000 pages of documents in response to IDT's subpoena and represented in writing that it had fully complied with the subpoena, but that during the course of discovery in this action IDT learned that Morgan Stanley produced only a small percentage of the documents that were relevant and responsive to IDT's subpoena and that the excluded documents, consisting of an additional 500,000 pages, included critical "smoking gun" documents. One of those documents is a letter from two Morgan Stanley executives to Telefonica's chairman just two months after the contract with IDT was signed, advising Telefonica to sell its equity in the project at cost and encouraging Telefonica to reevaluate its agreements with IDT. IDT alleges that this concealment by Morgan Stanley caused it great damage in the arbitration because the withheld documents would have enabled IDT to prove that Telefonica had breached the contract as early as October 1999 rather than somewhere between October 2000 and March 2001, as the arbitrators determined, thus increasing the award of damages.

Since IDT had not initially included causes of action for fraudulent misrepresentation and fraudulent concealment in its complaint, it sought leave to amend the complaint ^[FN2]. Supreme Court granted the motion, rejecting Morgan Stanley's arguments that the claims were legally deficient because IDT could not demonstrate that it suffered any harm as a result of not having the documents during the arbitration and that the documents were cumulative. The court found that IDT had pleaded the elements of fraud and fraudulent concealment, noting that the elements of fraudulent concealment are the same as fraud, with the addition that the party charged with the fraud must have had a duty to disclose.

Subsequently, Morgan Stanley moved to dismiss those causes of action for failure to state a cause of action on the ground that New York does not recognize spoliation of evidence as a cognizable tort. On constraint of the Court of Appeals' decision in Ortega v City of New York (9 NY3d 69 [2007]), Supreme Court granted the motion, concluding that IDT's framing of the claims as fraud claims "[did] not take it out of the rules regarding spoliation of evidence claims." This was error.

Supreme Court correctly found in its initial assessment that IDT had sufficiently alleged claims for fraud and fraudulent concealment. IDT alleges that Morgan Stanley made a material misrepresentation of fact when it represented that it had fully complied with the subpoena; that the misrepresentation was made intentionally to defraud or mislead IDT; that IDT reasonably [*3]relied on the misrepresentation, and that it suffered damage as a result of its reliance (see e.g. P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V., 301 AD2d 373, 376 [2003]). In addition to these elements, IDT alleges that Morgan Stanley had a duty to disclose and that it failed to do so, thus stating a claim for fraudulent concealment (id.).

The Court of Appeals' decision in Ortega v City of New York (9 NY3d 69 [2007], supra) does not require dismissal of IDT's claims for fraud and fraudulent concealment simply because the vehicle for the alleged fraudulent conduct was concealment of evidence. First, the Ortega holding involved a claim of negligent spoliation of evidence, not a claim of intentional concealment or spoliation of evidence. Second, unlike the City in Ortega, which the court noted was a third party with a duty to preserve evidence but with no connection to the underlying litigation, Morgan Stanley was not an uninvolved third party to the arbitration proceeding between IDT and Telefonica. It had fiduciary relationships with both parties, and the concealment of documents from IDT arguably both benefitted its client Telefonica in the arbitration and protected Morgan Stanley from being sued by IDT.

Two additional circumstances distinguish this case from Ortega. The Ortega court refused to recognize a third-party spoliation claim because the content of the lost evidence is unknown, thus leading to speculation as to causation and damages. Here, there is no such concern because the concealed documents have been produced. The court also found that it would not be sound public policy to permit an independent tort of spoliation to be asserted against a municipality. There are no public policy reasons to disallow IDT's claims for fraud and fraudulent concealment against its fiduciary based on the latter's spoliation of subpoenaed documents.

Importantly, the Ortega court wrote that "[a]t bottom, plaintiffs seek recognition of a new cause of action because they cannot meet the traditional proximate cause and actual damages standards at the foundation of our common-law tort jurisprudence" (9 NY3d at 80). IDT suffers from no such impediment. It has met the pleading standard for fraud and fraudulent concealment and thus has a remedy under existing tort principles. There is no indication in Ortega that the court would reject an already recognized common-law tort claim simply because the claim was based on the spoliation of evidence.

We note that the New Jersey courts, which do not recognize a separate tort action for intentional spoliation, recognize a claim of fraudulent concealment based on the intentional spoliation of evidence (see e.g. Rosenblit v Zimmerman, 166 NJ 391, 766 A2d 749 [2001]; R.L. v Voytac, 402 NJ Super 392, 407-408, 954 A2d 527, 536 [App Div 2008] certif granted in part 197 NJ 259, 962 A2d 530 [2008]; Viviano v CBS, Inc., 251 NJ Super 113, 597 A2d 543 [App [*4]Div 1991] certif denied 127 NJ 565, 606 A2d 375 [1992]). There is no sound reason for New York courts to conclude otherwise.

The bold is mine.

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

Northfield Ins. Co. v Model Towing & Recovery, 2009 NY Slip Op 04878 (App. Div., 2nd, 2009)

A preliminary conference order dated July 28, 2005, set forth deadlines for discovery including, inter alia, a provision that the plaintiff was to provide, within 30 days of the preliminary conference, its complete claims file, all contracts relating to the subject premises, and responses to any of the demands of the defendant Model Towing and Recovery (hereinafter Model Towing) to the extent not already provided. By order entered December 19, 2006, the Supreme Court, inter alia, directed the parties to appear for a status conference on February 14, 2007, at which time it was anticipated that all discovery would be completed.

The court conducted numerous status conferences throughout 2006 and 2007 to expedite discovery. At the conclusion of a conference on December 12, 2007, after the parties failed to complete discovery, the court issued an order directing, inter alia, that by January 16, 2008, the plaintiff was to produce a certified copy of its claims and underwriting files pertaining to the subject premises, in addition to providing responses to any outstanding discovery requests. In addition, Model Towing was directed to "advise" the plaintiff by letter with respect to the outstanding demands by December 14, 2007. The order also directed that the plaintiff's failure to provide any of the demanded documents would result in preclusion. Model Towing provided a list of 25 outstanding demands to the plaintiff on December 12, 2007, in court. By January 16, 2008, discovery from the plaintiff remained outstanding.

Thereafter, Model Towing moved, inter alia, to strike the plaintiff's complaint pursuant to CPLR 3126 for the plaintiff's failure to comply with discovery demands and discovery orders of the court, including the order dated December 12, 2007. In an order entered August 21, 2008, the court denied the motion, finding that the plaintiff's actions were not willful, contumacious, or calculated to deprive Model Towing of discovery. In the same order, the court set forth a schedule by which the outstanding discovery was to be completed and provided that failure to comply with the schedule would be the basis for a motion for relief pursuant to CPLR 3126.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion (see Kihl v Pfeffer, 94 NY2d 118, 122; Zletz v Wetanson, 67 NY2d 711; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495; Novis v Benes, 268 AD2d 464). Although striking a pleading is a drastic remedy, it is appropriate where there is a clear showing that the failure to comply with discovery demands was willful or contumacious (see Frias v Fortini, 240 AD2d 467; cf. Novis v Benes, 268 AD2d 464). It can be inferred that a party's conduct is willful and contumacious when it repeatedly fails to comply with discovery demands and court orders compelling disclosure without providing a reasonable excuse for noncompliance (see Mei Yan Zhang v Santana, 52 AD3d 484, 485; Dinstber v Geico Ins. Co., 32 AD3d 893; Kroll v Parkway Plaza Joint Venture, 10 AD3d 633, 634; Ordonez v Guerra, 295 AD2d 325; Cutolo v Khalife, 242 AD2d 661; Frias v Fortini, 240 AD2d 467; Kubacka v Town of North Hempstead, 240 AD2d 374). "If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 NY2d at 123).

The plaintiff did not offer a reasonable excuse for failing to comply with Model Towing's repeated discovery demands or the orders of the court directing compliance with those demands. Accordingly, it was an improvident exercise of discretion to deny Model Towing's motion to unconditionally strike the complaint (see Hanlon v Rosenthal, 7 AD3d 758; Smith v Eastern Long Is. Hosp., 263 AD2d 477).

IDT Corp. v Morgan Stanley Dean Witter & Co., 2009 NY Slip Op 05253 (App. Div., 1st, 2009)

IDT alleges that Morgan Stanley produced more than 2,000 pages of documents in response to IDT's subpoena and represented in writing that it had fully complied with the subpoena, but that during the course of discovery in this action IDT learned that Morgan Stanley produced only a small percentage of the documents that were relevant and responsive to IDT's subpoena and that the excluded documents, consisting of an additional 500,000 pages, included critical "smoking gun" documents. One of those documents is a letter from two Morgan Stanley executives to Telefonica's chairman just two months after the contract with IDT was signed, advising Telefonica to sell its equity in the project at cost and encouraging Telefonica to reevaluate its agreements with IDT. IDT alleges that this concealment by Morgan Stanley caused it great damage in the arbitration because the withheld documents would have enabled IDT to prove that Telefonica had breached the contract as early as October 1999 rather than somewhere between October 2000 and March 2001, as the arbitrators determined, thus increasing the award of damages.

Since IDT had not initially included causes of action for fraudulent misrepresentation and fraudulent concealment in its complaint, it sought leave to amend the complaint ^[FN2]. Supreme Court granted the motion, rejecting Morgan Stanley's arguments that the claims were legally deficient because IDT could not demonstrate that it suffered any harm as a result of not having the documents during the arbitration and that the documents were cumulative. The court found that IDT had pleaded the elements of fraud and fraudulent concealment, noting that the elements of fraudulent concealment are the same as fraud, with the addition that the party charged with the fraud must have had a duty to disclose.

Subsequently, Morgan Stanley moved to dismiss those causes of action for failure to state a cause of action on the ground that New York does not recognize spoliation of evidence as a cognizable tort. On constraint of the Court of Appeals' decision in Ortega v City of New York (9 NY3d 69 [2007]), Supreme Court granted the motion, concluding that IDT's framing of the claims as fraud claims "[did] not take it out of the rules regarding spoliation of evidence claims." This was error.

Supreme Court correctly found in its initial assessment that IDT had sufficiently alleged claims for fraud and fraudulent concealment. IDT alleges that Morgan Stanley made a material misrepresentation of fact when it represented that it had fully complied with the subpoena; that the misrepresentation was made intentionally to defraud or mislead IDT; that IDT reasonably [*3]relied on the misrepresentation, and that it suffered damage as a result of its reliance (see e.g. P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V., 301 AD2d 373, 376 [2003]). In addition to these elements, IDT alleges that Morgan Stanley had a duty to disclose and that it failed to do so, thus stating a claim for fraudulent concealment (id.).

The Court of Appeals' decision in Ortega v City of New York (9 NY3d 69 [2007], supra) does not require dismissal of IDT's claims for fraud and fraudulent concealment simply because the vehicle for the alleged fraudulent conduct was concealment of evidence. First, the Ortega holding involved a claim of negligent spoliation of evidence, not a claim of intentional concealment or spoliation of evidence. Second, unlike the City in Ortega, which the court noted was a third party with a duty to preserve evidence but with no connection to the underlying litigation, Morgan Stanley was not an uninvolved third party to the arbitration proceeding between IDT and Telefonica. It had fiduciary relationships with both parties, and the concealment of documents from IDT arguably both benefitted its client Telefonica in the arbitration and protected Morgan Stanley from being sued by IDT.

Two additional circumstances distinguish this case from Ortega. The Ortega court refused to recognize a third-party spoliation claim because the content of the lost evidence is unknown, thus leading to speculation as to causation and damages. Here, there is no such concern because the concealed documents have been produced. The court also found that it would not be sound public policy to permit an independent tort of spoliation to be asserted against a municipality. There are no public policy reasons to disallow IDT's claims for fraud and fraudulent concealment against its fiduciary based on the latter's spoliation of subpoenaed documents.

Importantly, the Ortega court wrote that "[a]t bottom, plaintiffs seek recognition of a new cause of action because they cannot meet the traditional proximate cause and actual damages standards at the foundation of our common-law tort jurisprudence" (9 NY3d at 80). IDT suffers from no such impediment. It has met the pleading standard for fraud and fraudulent concealment and thus has a remedy under existing tort principles. There is no indication in Ortega that the court would reject an already recognized common-law tort claim simply because the claim was based on the spoliation of evidence.

We note that the New Jersey courts, which do not recognize a separate tort action for intentional spoliation, recognize a claim of fraudulent concealment based on the intentional spoliation of evidence (see e.g. Rosenblit v Zimmerman, 166 NJ 391, 766 A2d 749 [2001]; R.L. v Voytac, 402 NJ Super 392, 407-408, 954 A2d 527, 536 [App Div 2008] certif granted in part 197 NJ 259, 962 A2d 530 [2008]; Viviano v CBS, Inc., 251 NJ Super 113, 597 A2d 543 [App [*4]Div 1991] certif denied 127 NJ 565, 606 A2d 375 [1992]). There is no sound reason for New York courts to conclude otherwise.

CPLR § 3213--SJ in Lieu of Complaint

CPLR § 3213 Motion for summary judgment in lieu of complaint

Mendelsohn v JP Morgan Chase Bank, N.A., 2009 NY Slip Op 05304 (App. Div., 2nd, 2009)

In this action to recover on a cashier's check, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law by submitting a copy of the cashier's check, drawn by the [*2]defendant, on itself, and payable to him, along with proof that the defendant has refused to honor the check (see Rosenbaum v First Natl. City Bank of N.Y., 11 NY2d 845, 846; Taboada v Bank of Babylon, 95 Misc 2d 1000; see generally Northport Car Wash, Inc. v Northport Car Care, LLC, 52 AD3d 794, 795). In opposition, the defendant failed to raise a triable issue of fact with respect to a bona fide defense (see Kaufman v Chase Manhattan Bank, 370 F Supp 276, 278; Bunge Corp. v Manufacturers Hanover Trust Co., 65 Misc 2d 829, 835, mod 37 AD2d 409, affd 31 NY2d 223; see generally Studley v National Fuel Gas Supply Corp., 125 Misc 2d 956, 961; cf. U.S. Printnet v Chemung Canal Trust Co., 270 AD2d 544, 546). Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment in lieu of complaint (see Northport Car Wash, Inc. v Northport Car Care, 52 AD3d at 795).

The bold is mine.

CPLR § 321 Attorneys

CPLR § 321 Attorneys
(b) Change or withdrawal of attorney

Kaufman v Kaufman, 2009 NY Slip Op 05272 (App. Div., 1st, 2009)

In this matrimonial action, the contractual provision in the retainer agreement that purports to authorize counsel to withdraw upon nonpayment of fees does not vitiate the procedural requirements of CPLR 321(b), nor does it deprive the court of its traditional discretion in regulating the legal profession by overseeing the charging of fees for legal services (see e.g. Solow Mgt. Corp. v Tanger, 19 AD3d 225 [2005]). The motion court properly considered counsel's motion to withdraw against the requirement that to be "entitled to terminate the relationship with a client, an attorney must make a showing of good or sufficient cause and reasonable notice" (George v George, 217 AD2d 913 [1995]).

There is no basis on this record to conclude that the court engaged in an improvident exercise of its discretion in denying counsel's motion (see e.g. Torres v Torres, 169 AD2d 829 [1991]). The mere fact that a client fails to pay an attorney for services rendered does not, [*2]without more, entitle the attorney to withdraw (Cashdan v Cashdan, 243 AD2d 598 [1997]; George v George, 217 AD2d 913, supra).

The bold is mine.

CPLR § 302(a)(1) -Long Arm Jurisdiction; and Another Jurisdiction Issue (comity)

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Millennium Import, LLC v Reed Smith LLP, 2009 NY Slip Op 05175 (App. Div., 1st, 2009)

While third-party defendants were retained in California by a non-New York plaintiff with respect to a California action, in conducting their representation of plaintiff they had contacts with this State of sufficient quantity and quality to confer jurisdiction over them (see CPLR 302[a][1]; Fischbarg v Doucet, 9 NY3d 375, 380 [2007]; Scheuer v Schwartz, 42 AD3d 314 [2007]). The record demonstrates that third—party defendants engaged in extensive communications with New York counsel, both outside (defendants/third-party plaintiffs) and in-house, of an entity related to plaintiff, referred to as LVMH, which was acting on plaintiff's behalf. Third-party defendants related every aspect of the California litigation to the New York attorneys in detail and sought input from all counsel. The memorandum prepared by third-party defendants analyzing the underlying claim against plaintiff and recommending action to be taken by plaintiff was addressed to LVMH's counsel and an LVMH employee and cited previous discussions among them. In addition, the individual third-party defendant made at least three trips to New York in connection with the representation (see e.g. L & R Exploration Venture v Grynberg, 22 AD3d 221 [2005], lv denied 6 NY3d 749 [2005]).

Due process is not offended by the maintenance of this action against third-party defendants. Given their "purposeful activities" within this State (see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 21 AD3d 90, 93 [2005], affd 7 NY3d 65 [2006], cert denied 549 US 1095 [2006]), they "should reasonably anticipate being haled into court []here" (LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 216 [2000], quoting World-Wide Volkswagen Corp. v Woodson, 444 US [*2]286, 297 [1980]), and the prospect of defending such an action "comport[s] with traditional notions of fair play and substantial justice" (id. [internal quotation marks and citations omitted]).

Jim Beam Brands Co. v Tequila Cuervo La Rojeña S.A. de C.V., 2009 NY Slip Op 05193 (App. Div., 1st, 2009)

Long-arm jurisdiction under CPLR 302(a)(1) was correctly found where the complaint alleges that defendant breached the subject agreement in New York by permitting its licensee to sell nonconforming products here, and where the agreement regulates defendant's use of the subject trademark throughout the entire United States, was negotiated in New York by defendant's long-standing New York counsel, contains a New York choice-of-law clause, and extends to "all those acting in concert or participation with [defendant] or under [its] direction and control" (see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71 [2006]; Sunward Elecs., Inc. v McDonald, 362 F3d 17, 22, 23 [2d Cir 2004]). Given long-arm jurisdiction under CPLR 302(a)(1), we need not reach the question of whether there is also jurisdiction under CPLR 301 (see Deutsche Bank, 7 NY3d at 72 n 2).

R&R Capital LLC v Merritt, 2009 NY Slip Op 05179 (App. Div., 1st, 2009)

The court lacked jurisdiction to order plaintiffs to withdraw claims pending in the state courts of Pennsylvania and Delaware, since, as we recently found in the companion appeal, "the relief sought did not relate to a cause of action raised in the initial complaint, nor was the issue involved previously litigated in this action" (60 AD3d 528, 529 [2009]). Furthermore, the order improperly intrudes on the jurisdiction of the Delaware and Pennsylvania courts, in violation of established principles of comity (see Ackerman v Ackerman, 219 AD2d 515 [1995]). There is no basis for the court's finding that the Delaware and Pennsylvania actions were brought in bad faith or with an intent to harass defendant.