theCPLRblog

Sanctions!

22 NYCRR 130-1.1 Costs; sanctions

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

Caplan v Tofel, 2009 NY Slip Op 06658 (App. Div., 2nd, 2009)

The Supreme Court also providently exercised its discretion in granting that branch of the defendants' motion which was to impose a sanction upon the plaintiff pursuant to 22 NYCRR 130-1.1 for frivolous conduct. Contrary to the plaintiff's contention, the record supports the Supreme Court's finding that he engaged in frivolous conduct by instituting this action for the primary purpose of delaying enforcement of the defendants' judgment (see Matter of Minister, Elders & Deacons of Ref. Pro. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411). However, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was to impose a sanction upon the plaintiff's counsel, based upon its finding that counsel was not fully aware of the history of prior litigation between the parties.

The continuation of the same patently meritless arguments on appeal would appear to constitute frivolous conduct, and therefore we direct counsel for the parties to show cause why additional sanctions should or should not be imposed (see Good Old Days Tavern, Inc. v Zwirn, 271 AD2d 270; 22 NYCRR 130-1.1[c]).

Matter of Nazario v Ciafone, 2009 NY Slip Op 06691 (App. Div., 2nd, 2009)

In support of that branch of the petition which was to compel the appellant to turn over the petitioner's file to her new attorney, the petitioner presented proof that on January 25, 2007, the appellant received her letter discharging him as her attorney and requesting him to turn over her file. In opposition, the appellant submitted his affirmation in support of his claims that the petitioner had given him more time to work on her file and that he had a common-law retaining lien on the file to secure his right to reimbursement of disbursements (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-459; Lelekakis v Kamamis, 8 AD3d 630; Lansky v Easow, 304 AD2d 533; Landy v Jacobs, 284 AD2d 432). The appellant is a party to this proceeding; therefore, his submission of an affirmation rather than an affidavit was insufficient to oppose the petition because it was not in admissible form (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 n *; Pisacreta v Minniti, 265 AD2d 540; Lauer v Rapp, 190 AD2d 778). Furthermore, he failed to submit any proof demonstrating that he had earned any fee or was entitled to recover any disbursements that had been paid prior to the effective date of the discharge (cf. Lelekakis v Kamamis, 8 AD3d 630; Lansky v Easow, 304 AD2d 533; Security Credit Sys. v Perfetto, 242 AD2d 871; Roskind v Brown, 29 AD2d 549, 550). Accordingly, the court properly granted that branch of the petition which was to compel the appellant to turn over the petitioner's file to her new attorney without holding an expedited hearing, since the appellant's papers in opposition failed to raise an issue of fact regarding a retaining lien for disbursements.

Furthermore, the court providently exercised its discretion in granting that branch of the petition which was pursuant to 22 NYCRR 130-1.1 for an award of costs and the imposition of sanctions [*2]against the appellant. Contrary to the appellant's contention, since the petitioner expressly requested the subject relief in her motion papers, and the appellant was afforded an opportunity to be heard and to oppose the motion, a hearing was not required (see 22 NYCRR 130-1.1[d]; Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411, 413 n; Matter of Balsamo, 55 AD3d 905, 906; Wesche v Wesche, 51 AD3d 909, 910; RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776).

The bold is mine.

SOL Buden of proof for money owed pursuant to a contract

CPLR R. 3211(a)(5) Motion to dismiss for SOL (or other things, but SOL in this case)

Kuo v Wall St. Mtge. Bankers, Ltd., 2009 NY Slip Op 06511 (App. Div., 2nd, 2009)

The Supreme Court also correctly denied that branch of the defendant's motion which was to dismiss the complaint as barred by the statute of limitations. "To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired . . . In order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiff's cause of action accrued. Where, as here, the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment'" (Swift v New York Med. Coll., 25 AD3d 686, 687, quoting Matter of Prote Contr. Co. v Board of Educ. of City of N.Y., 198 AD2d 418, 420 [citations [*2]omitted]; see Cimino v Dembeck, 61 AD3d 802; Matter of Schwartz, 44 AD3d 779). The defendant offered no evidence that would support a determination that the plaintiff had a legal right to demand payment of her compensation, in connection with the subject loan transaction, prior to the defendant's receipt of the commission fees from the borrower.

The bold is mine.

Stipulations, Orders, and Defaults: CPLR R. 5015; CPLR § 2005; CPLR R. 3216; CPLR § 2004

CPLR R. 5015 Relief from judgment or order

CPLR § 2005 Excusable delay or default

Davidson v Valentin, 2009 NY Slip Op 06500 (App. Div., 2nd, 2009)

On October 26, 2007, a stipulation was "so-ordered," in which the parties consented to the entry of a judgment in favor of the plaintiffs on their first cause of action, inter alia, to direct the defendants to repair or replace a retaining wall on the defendants' property in compliance with the terms of an access agreement executed by the parties on the same date. The stipulation provided that if the defendants failed to comply with the terms of the judgment, the parties would place the remaining causes of action on the trial calendar. After the defendants failed to timely comply with the terms of the judgment, the plaintiffs placed the remaining causes of action on the trial calendar. Thereafter, the defendants obtained multiple adjournments of the trial date in an effort to comply with the terms of the access agreement. When the defendants' attorney failed to appear for trial on the third adjourned date of January 28, 2008, the court held an inquest on the issue of damages and entered a judgment in favor of the plaintiffs on February 28, 2008. On April 23, 2008, the defendants moved to vacate the judgment.

To vacate their default in appearing at the trial, the defendants were required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015[a][1]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747). Although the court may, in its discretion, accept law office failure as a reasonable excuse (see CPLR 2005; Putney v Pearlman, 203 AD2d 333), "'a pattern of willful default and neglect' should not be excused" (Roussodimou v Zafiriadis, 238 AD2d 568, 569, quoting Gannon v Johnson Scale Co., 189 AD2d 1052, 1052). The statements by the defendants' attorney regarding his personal problems did [*2]not adequately explain the defendants' failure to comply with the time and terms of the court-ordered stipulation, judgment, and access agreement dated October 26, 2007, and to comply with those terms during the subsequent extensions of those deadlines, and defense counsel's failure to appear on the adjourned trial date even though he knew his attempts to further adjourn the trial had been unsuccessful (see Joseph v GMAC Leasing Corp., 44 AD3d 905; Wechsler v First Unum Life Ins. Co., 295 AD2d 340; Foster v Gherardi, 201 AD2d 701). Furthermore, the defendants failed to demonstrate that they have a meritorious defense (see Buchanan v Cardozo, 24 AD2d 620, 621, affd 16 NY2d 1029). Accordingly, the defendants' motion was properly denied. 

The bold is mine.

CPLR R. 3216 Want of prosecution

(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:

(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed.

CPLR § 2004 Extensions of time generally

Davis v Cardiovascular Consultants of Long Is., P.C., 2009 NY Slip Op 06501 (App. Div., 2nd, 2009)

An order entered November 7, 2007, which warned the plaintiff that the failure to serve and file a note of issue would result in dismissal of the action, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Huger v Cushman & Wakefield, Inc., 58 AD3d 682; Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Giannoccoli v One Cent Park W. Assocs., 15 AD3d 348; Betty v City of New York, 12 AD3d 472). Having received a 90-day notice, the plaintiff was required either to file a timely note of issue or to move, before the default date, for an extension of time pursuant to CPLR 2004 (see Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Bokhari v Home Depot U.S.A., 4 AD3d 381; McKinney v Corby, 295 AD2d 580, 581). The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.

To vacate the dismissal of an action pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action (see CPLR 3216[e]; Felix v County of Nassau, 52 AD3d 653; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783). Here, the plaintiff failed to submit any expert medical opinion evidence to demonstrate the merit of his medical malpractice action (see Mosberg v Elahi, 80 NY2d 941, 942; Fiore v Galang, 64 NY2d 999, 1000-1001; Salch v Paratore, 60 NY2d 851, 852; Picot v City of New York, 50 AD3d 757; Burke v Klein, 269 AD2d 348, 348-349; Abelard [*2]v Interfaith Med. Ctr., 202 AD2d 615, 616; Feinblum v Dybner, 197 AD2d 560). Accordingly, that branch of his motion which was, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 should have been denied.

Strange.  Consider CPLR R. 3216(b)(3).  Specifically, the "registered or certified" mail part.

Again, the bold is mine.

Appellate Procedure: An Incomplete Record CPLR R. 5526

CPLR R. 5526 Content and form of record on appeal

Civil v Tae Hwa Sim, 2009 NY Slip Op 06499 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the proposed intervenor, Broadspire, appeals from an order of the Supreme Court, Rockland County (Nelson, J.), dated September 15, 2008, which denied its motion, inter alia, pursuant to CPLR 1013 for leave to intervene in the action.

ORDERED that the appeal is dismissed, with costs.

CPLR 5526 provides that the record on appeal from an interlocutory order shall consist of, inter alia, "the papers and other exhibits upon which the . . . order was founded."

It is the obligation of the appellant to assemble a proper record on appeal. An appellant's record on appeal must contain all of the relevant papers before the Supreme Court. Appeals that are not based upon complete and proper records must be dismissed (see Robertson v United Equities, Inc., 61 AD3d 838; Matter of Arcarian Sys. Ltd., 38 AD3d 649). In this case, the appellant based its motion for leave to intervene in large part on an arbitration decision which was submitted to the Supreme Court both as an exhibit to the appellant's motion papers, and as an exhibit to the plaintiff's papers in opposition to the motion. However, the appellant did not include that decision in the record on appeal. Inasmuch as the record is inadequate, we dismiss the appeal (see Matter of Arcarian Sys. Ltd., 38 AD3d at 649).

Procedure: It's a killer.

The bold is mine.

Necessary Joinder CPLR § 1001

CPLR § 1001 Necessary joinder of parties

Censi v Cove Landings, Inc., 2009 NY Slip Op 06496 (App. Div., 2nd, 2009)

Necessary parties are persons "who might be inequitably affected by a judgment in the action" and must be made plaintiffs or defendants (see CPLR 1001[a]). CPLR 1001(b) requires the court to order such persons summoned, where they are subject to the court's jurisdiction. If jurisdiction over such necessary parties can be obtained only by their consent or appearance, the court is to determine, in accordance with CPLR 1001(b), whether justice requires that the action proceed in their absence (see CPLR 1001 [b]). The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal (see City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475; Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272, 282; Matter of Jim Ludtka Sporting Goods, Inc. v City of Buffalo School Dist., 48 AD3d 1103, 1103-1104; Matter of Storrs v Holcomb, 245 AD2d 943, 944 n 1; Wrobel v La Ware, 229 AD2d 861; Matter of Dreyfuss v Board of Educ. of Union Free School Dist. No. 3, Town of Huntington, 42 AD2d 845; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1003:1; see also CPLR 1003).

Here, the record indicates the possible existence of necessary parties who have not been joined, namely, the owners of the remainder of the roadbed of Fish Cove Road. Those parties' interests in real property may be affected by that portion of the Supreme Court's order which, upon searching the record, declared Fish Cove Road to be a public highway, and effectively granted the public an easement to pass over their lands (see Sorbello v Birchez Assocs., LLC, 61 AD3d 1225; Schaffer v Landolfo, 27 AD3d 812; Dunkin Donuts of N.Y., Inc. v Mid-Valley Oil Co., Inc., 14 AD3d 590, 592; Matter of Princess Bldg. Corp. v Zoning Bd. of Appeals of Town of Huntington, 307 AD2d 972; Hitchcock v Boyack, 256 AD2d 842, 844; Buckley v MacDonald, 231 AD2d 599, 600; Matter of Lehrer v Wallace, 24 AD2d 602, 603). Thus, the court should not have made this determination upon searching the record without first determining whether all necessary parties were joined. Under the circumstances of this case, "the questions of whether there are any . . . necessary parties who should be joined in this action and, if so, the appropriate procedural disposition for effecting joinder should not be determined by this [C]ourt in the first instance" (De Ruscio v Jackson, 164 AD2d 684, 688). Accordingly, we remit the matter to the Supreme Court, Suffolk County, to hold a hearing to determine whether there are any necessary parties who should be joined in this action and, if so, to compel their joinder, subject to any affirmative defenses, and if joinder cannot be effectuated, to determine, pursuant to CPLR 1001(b), whether the action should proceed in the absence of any necessary parties.

It's almost always a good idea to invite everyone to the party.  Note that this can be brought up on appeal for the first time, so, if you aren't careful, you can lose, even when you win.

The bold is mine.

Is CPLR R. 3212 Constitutional?

Why Summary Judgment is Unconstitutional, Virginia Law Review, Vol. 93, p. 139, 2007, Suja A. Thomas. I found this over at Crime & Federalism (specific post). So what if I'm a couple of years behind. 

Thomas argues that Summary Judgment violates the Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Anyway, some people took issue with the article, and the author replied with Why Summary Judgment is Still Unconstitutional.

What about in New York?  Is CPLR R. 3212 Unconstitutional?  Funny you should ask; I was just looking that up.  Article 1, Section 2 of New York's Constitution, governs trials by jury:

Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver.

Not quite the same thing as the U.S. Constitution.

The New York Court of Appeals tackled this issue long ago in General Inv. Co. v. Interborough Rapid Transit Co., 235 N.Y. 133 (1923)("In the instant case we conclude that the constitutional rights of defendant are not infringed by the rule; that the justice at Special Term properly held that no issue for submission to a jury was shown to exist between the parties.")  Of course, CPLR R. 3212 wasn't in play at the time.

Lets look at that quote again:

In the instant case we conclude that the constitutional rights of defendant are not infringed by the rule; that the justice at Special Term properly held that no issue for submission to a jury was shown to exist between the parties

What if the Court screwed it up?

The Google blogger case; CPLR § 3102(c) pre-suit discovery

This case has been in the headlines in the past few weeks.  For those that don't know, an anonymous blogger posted some less than nice things on her blog.  Petitioner found those posts, was hurt and angry, and wanted to find out who said those things.  And of course she wanted to sue for defamation.  But to sue, she would need to know the anonymous blogger's identity.  So she used New York's procedural device to receive pre-suit discovery: CPLR § 3102(c).  She requested that the Court order Google to give up information as to the blogger's identity.  Prior to the action, Google refused to divulge any information without a court order.  And, it objected to petitioner's request as being overbroad, vague, etc. We'll get to the decision in a minute.

While all of us (me) here at the CPLR blog are interested in the procedural niceties of the decision, there is more at stake.  The decision and its implications have been discussed in detail all over the interweb.  Check out Simple Justice and Concurring Opinions for some discussion of this case as it relates to the big picture: the First Amendment. 

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Cohen v Google Inc., 2009 NY Slip Op 29369 (Sup. Ct., New York County, 2009)

In opposing petitioner's application, the Anonymous Blogger contends that petitioner is not entitled to pre-action discovery because she cannot demonstrate a meritorious claim for defamation. The Anonymous Blogger asserts that the statements on the Blog, which appear as captions to provocative photographs which the Blogger alleges were posted by petitioner herself,^[FN4] [*3]are "non-actionable opinion and/or hyperbole," and that no reasonable viewer of the Blog would conclude that the statements referring to petitioner purport to convey verifiable statements of fact. The Blogger argues that the words "skank" and "ho" are not statements of objective fact which can be proven true or false; rather, the words are used in a "loose hyperbolic" manner, and "have become a popular form of trash talk' ubiquitous across the Internet as well as network television and should be treated no differently than jerk' or any other form of loose and vague insults that the Constitution protects." The Blogger further argues that even if the words are capable of a defamatory meaning, "the context here negates any impression that a verifiable factual assertion was intended," since blogs "have evolved as the modern day soapbox for one's personal opinions," by "providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken, a protected forum for voicing gripes, leveling invective, and ranting about anything at all."

The law in New York governing pre-action discovery is well settled. CPLR 3102(c) requires a court order for pre-action disclosure to aid in bringing an action or to preserve information. See Matter of Uddin v. New York City Transit Authority, 27 AD3d 265, 266 (1st Dept 2006). When a party seeks pre-action disclosure to secure additional information necessary to frame a complaint or to identify the proper defendant with respect to a known cause of action, "courts traditionally require a strong showing that a cause of action exists." Siegel, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3102:5 at 92. " A petition for pre-action discovery should only be granted when the petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.'" Matter of Uddin v. New York City Transit Authority, supra at 266 (quoting Holzman v. Manhattan & Bronx Surface Transit Operating Authority, 271 AD2d 346, 347 [1st Dept 2000]); accord Matter of Peters v. Southeby's Inc., 34 AD3d 29, 34 (1st Dept 2006), lv app den 8 NY3d 809 (2007); Matter of Bliss v. Jaffin, 176 AD2d 106, 108 (1st Dept 1991); Matter of Stewart v. New York City Transit Authority, 112 AD2d 939 (2nd Dept 1985). "As a general rule, the adequacy of merit rests within the sound discretion of the court.'" Matter of Peters v. Southeby's Inc., supra (quoting Mediavilla v. Gurman, 272 AD2d 146, 148 [1st Dept 2000]).^[FN5] [*4]

Here, petitioner is entitled to pre-action disclosure of information as to the identity of the Anonymous Blogger, as she has sufficiently established the merits of her proposed cause of action for defamation against that person or persons, and that the information sought is material and necessary to identify the potential defendant or defendants. See Matter of Uddin v. New York City Transit Authority, supra ; Matter of Stewart v. New York City Transit Authority, supra . The elements of a cause of action for defamation "are a false statement, published without privilege or authorization to a third-party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se." Dillon v. City of New York , 261 AD2d 34, 38 (1st Dept 1999); accord Salvatore v. Kumar, 45 AD3d 560, 563 (2nd Dept 2007), lv app den 10 NY3d 703 (2008). The Anonymous Blogger's contention that the statements about petitioner on the Blog are protected opinion or hyperbole which is not actionable, raises an issue as to the first element which requires a statement of fact as opposed to opinion.

The Court found that the the words used "can be understood to describe the petitioner as sexually promiscuous; that the statements are facts that can be proven true or false; and that the words used can be "reasonably susceptible to a defamatory connotation, as opposed to a word like "jerk."

The Court continues:

The court also rejects the Anonymous Blogger's argument that this court should find as a matter of law that Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting, and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions. To the contrary, as one court in Virginia has articulated: "In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights." In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va Cir Ct), revd on other gds, 261 Va 350, 542 SE2d 377 (Va Sup Ct 2001) (quoted in Public Relations Society of America, Inc. v. Road Runner High Speed Online, supra ).

Thus, in light of the merits of petitioner's proposed cause of action for defamation, and the materiality and necessity of the requested information, petitioner is entitled to an order pursuant to CPLR 3102(c) directing respondent Google to disclose the information as to the identity of the Anonymous Blogger. See Matter of Uddin v. New York City Transit Authority, supra ; Matter of Stewart v. New York City Transit Authority, supra .

Accordingly, it is hereby

ORDERED AND ADJUDGED that the petition is granted and respondent Google, Inc. and/or its subsidiary Blogger.Com, shall forthwith provide petitioner with information as to the identity of the Anonymous Blogger(s), specifically that person's or persons' name(s), address(es), email address(es), IP address(es), telephone number(s), and all other information that would assist in ascertaining the identity of that person or persons.

Footnote No. 5 offers an interesting comparison between New York and New Jersey law as to when the "identity of an anonymous Internet speaker should be disclosed to a potential plaintiff."

The blogger was outed soon after the decision.  There was no appeal.

Sufficiently particular but individual issues predominate: CPLR R. 3016; CPLR § 901

CPLR R. 3016 Particularity in specific actions

CPLR § 901 Prerequisites to a class action

Dobroshi v Bank of Am., N.A., 2009 NY Slip Op 06382 (App. Div., 1st, 2009)

...

Contrary to defendant's claim, the second cause of action pleads fraud with sufficient particularity to satisfy CPLR 3016(b) (see Lanzi v Brooks, 43 NY2d 778, 780 [1977]). It informs defendant that plaintiff complains of the significant increase in settlement costs between the Good Faith Estimate of Settlement Services (GFE) and the HUD-1 statement, and of the fact that she was informed about this increase only one day before the closing. 

Plaintiff's allegation that defendant deliberately underestimated settlement costs to induce her to obtain a loan from it, rather than from a competing lender states a claim for fraud (see Wright v Selle, 27 AD3d 1065, 1067-1068 [2006]). The GFE was not a mere statement of future intent (see Watts v Jackson Hewitt Tax Serv., Inc., 579 F Supp 2d 334, 352 [ED NY 2008]), and the issue of material misrepresentation is not subject to summary disposition (see e.g. Brunetti v Musallam, 11 AD3d 280, 281 [2004]).

...

The motion court should have stricken the class action allegations. First, individual issues will predominate because all claims under General Business Law § 349 will require [*3]analysis of whether the ultimate closing costs were so unreasonable as to amount to a deceptive practice (cf. Weil v Long Island Savings Bank, FSB, 200 FRD 164, 174 [ED NY 2001] [distinguishing a case where each plaintiff would have to provide evidence of the services performed compared to a case where the plaintiffs claim that the alleged scheme was illegal per se]). Moreover, plaintiff contends that defendant's bad faith in making estimates is actionable. However, to determine if defendant acted in bad faith, it will be necessary to individually examine each of the tens of thousands of transactions at issue. Finally, plaintiff's proposed class would number in the thousands and would have individually tailored written disclosures, different types and amounts of fees and different reasons for the increase in closing costs. These circumstances negate the possibility that common questions would predominate (see Rose v SLM Fin. Corp., 254 FRD 269, 272-73 [WD NC 2008]).

The bold is mine.

Experts

Bygrave v New York City Hous. Auth., 2009 NY Slip Op 06361 (App. Div., 1st, 2009)

This decision is too long to pull a cut and paste job.  Long story short, defendant moved for summary judgment based on the affidavit of its expert.  The expert referred to a few reports, but not all of them were attached; however this did not bother the Court.  The Court rejected the testimony of the expert because it was not based upon "an individualized assessment of plaintiff's particular condition."  Click on the case to read more.  It's a lead paint case.

Before you go, take note:

Because defendant failed to meet its initial burden of establishing entitlement to judgment in its favor as a matter of law, the motion court should have denied the motion for summary [*5]judgment without even considering the sufficiency of plaintiff's opposition papers (see Winegrad, 64 NY2d at 853).

Expert testimony, even if unrebutted will not always carry the day.  Although, to be clear, the Court did find that had defendant met its burden, plaintiff opposition was sufficient to raise an issue of fact.

Lately the First Department has had a dissent in almost every decision.  This one was no exception.

Interpleader

CPLR § 1006 Interpleader

Navarone Prods., N.V. v HSBC Gibbs Gulf Ins. Consultants Ltd., 2009 NY Slip Op 06367 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Herman Cahn, J.), entered June 24, 2008, that, after a nonjury trial, found Navarone Productions, N.V. entitled to certain film distribution revenues, and order, same court and Justice, entered December 31, 2008, that, to the extent appealed from, as limited by the briefs, directed Sony Pictures to pay Navarone 60% of the revenues it is holding and all future revenues from the film, unanimously affirmed, with costs.

This interpleader action required the trial court to determine who was entitled to receive monies that Sony holds, and will receive in the future, representing proceeds on the distribution of a 1970's movie entitled Force Ten from Navarone. In determining that plaintiff Navarone Productions, N.V. was entitled to all monies and to future distributions, the trial court based its findings on a fair interpretation of the evidence (see Thoreson v Penthouse Intl., 80 NY2d 490, [*2]495 [1992]), especially in light of appellant's scheme with the interpleaded defendants to defraud Sony into wrongfully paying them by failing to notify Sony that appellant had already received full payment under a settlement agreement (see generally Pecorella v Greater Buffalo Press, Inc., 107 AD2d 1064, 1065 [1985]). We find that the court did not err in its evidentiary rulings and that the rulings, regardless of their validity, would not have altered the outcome of the case (see e.g. Vertical Computer Sys., Inc. v Ross Sys., Inc., 59 AD3d 205 [2009]).

The bold is mine.