theCPLRblog

Shady Grove is out (SCOTUS): CPLR § 901(b) v. FRCP 23

You might recall the Shady Grove case, Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co. The issue there was whether a class action to collect overdue interest (a penalty) could be maintained in Federal Court under FRCP 23, when CPLR 901(b) prohibits a class action to "recover a penalty."  The District Court said no, the 2nd Circuit affirmed.  Now, the Supreme Court reverses.

It was argued not too long ago, and now, we have a decision (5-4) (2010 WL 1222272): It's fine, the class action can proceed in federal court.

Until I get a chance to go through the decision, you can have a look at my earlier post on the case, or head over to the SCOTUSblog to read an excellent summary of today's decision.

The CPLR R. 3211 Roundup: It's going to be loooong.

Because I can't let all of these decisions keep on piling up, I'm doing a 3211 dump.  This will probably be followed by a 300's dump, and maybe a 3212 dump.

There is a lot here, but it's worth skimming.  Most of the cases related to improper service or conversion (3211-->3212).

Garner v China Natural Gas, Inc., 2010 NY Slip Op 02095 (App. Div., 2nd, 2010)

Although the defendants' motion was made pursuant to CPLR 3211, the Supreme Court, in effect, converted that branch of the motion which was to dismiss the cause of action alleging breach of contract into a motion for summary judgment pursuant to CPLR 3212. This was error (see Mihlovan v Grozavu, 72 NY2d 506; Bowes v Healy, 40 AD3d 566). Thus, this Court will apply to the entire complaint the standards applicable to a motion to dismiss pursuant to CPLR 3211 (see Neurological Serv. of Queens, P.C. v Farmingville Family Med. Care, PLLC, 63 AD3d 703, 704).

In assessing a motion to dismiss made pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and are accorded every favorable inference (see Riback v Margulis, 43 AD3d 1023). However, bare legal conclusions, as well as factual claims flatly contradicted by the record, are not entitled to any such consideration (id.).

He-Duan Zheng v American Friends of the Mar Thoma Syrian Church of Malabar, Inc., 67 AD3d 639 (App. Div., 2nd, 2009)

The defendant Mar Thoma Church (hereinafter the Church) alleged that the plaintiff failed to obtain leave of court prior to serving a supplemental summons and amended complaint naming it as a defendant in this action (see CPLR 1003). However, the failure to obtain prior leave of court is a waivable defect, and is not fatal in all instances (see Gross v BFH Co., 151 AD2d 452 [1989]; see also Tarallo v Gottesman, 204 AD2d 303 [1994]; Santopolo v Turner Constr. Co., 181 AD2d 429 [1992]; cf. Public Adm'r of Kings County v McBride, 15 AD3d 558 [2005]).

In this case, the Church failed to raise its defense of improper joinder in a timely, pre-answer motion to dismiss the complaint, and also failed to assert such defense in its answer. Accordingly, it waived the defense (see CPLR 3211 [a] [8]; [e]). The defense that the Church did raise, that the court lacked jurisdiction over it, "by reason of the manner in which the summons was served," implicates the distinct personal jurisdictional defense of improper service of process, and was insufficiently specific to place the plaintiff on notice that the Church was complaining of improper joinder (see McDaniel v Clarkstown Cent. Dist. No. 1, 83 AD2d 624, 625 [1981]).

In any event, the Church waived its improper joinder defense by its conduct in [*2]attending and participating in a preliminary conference setting forth a schedule for discovery, and in waiting until after the applicable statute of limitations had expired prior to making its motion to dismiss (see Tarallo v Gottesman, 204 AD2d 303 [1994]; Santopolo v Turner Constr. Co., 181 AD2d 429 [1992]; Gross v BFH Co., 151 AD2d 452 [1989]). Moreover, the Church cannot claim surprise or prejudice due to the plaintiff's delay in seeking leave to add it as a defendant in light of the statements made by its Treasurer to the investigators for its insurance carrier indicating that the Church was aware of the subject accident on the very day that it occurred.

Pistolese v William Floyd Union Free Dist., 69 AD3d 825 (App. Div., 2nd, 2010)

In late June 2008, on the last day of the school year, the infant plaintiff allegedly was assaulted by other youths, as he walked home from school with friends rather than ride a school bus. The incident allegedly occurred along Montauk Highway, some 30 minutes after the infant plaintiff left the school grounds. Although this was a pre-answer motion, under the facts of this case, the Supreme Court should have treated it as one for summary judgment pursuant to CPLR 3211 (c) since the defendant not only requested such treatment, but both the defendant and the plaintiffs deliberately charted a summary judgment course (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; see generally McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 545 [2006]).

While schools are under a duty to adequately supervise the students in their charge, they are not insurers of the safety of their students (see Vernali v Harrison Cent. School Dist., 51 AD3d 782, 783 [2008]; Maldonado v Tuckahoe Union Free School Dist., 30 AD3d 567, 568 [2006]; Chalen v Glen Cove School Dist., 29 AD3d 508, 509 [2006]). "[A] school's duty is coextensive with, and concomitant with, its physical custody and control over a child" (Stagg v City of New York, 39 AD3d 533, 534 [2007]) and its "custodial duty ceases once the student has passed out of its orbit of authority and the parent is perfectly free to reassume control over the child's protection" (Vernali v Harrison Cent. School Dist., 51 AD3d at 783; see Pratt v Robinson, 39 NY2d 554, 560 [1976]). [*2]

Here, the incident occurred at a time when the injured plaintiff was no longer in the defendant's custody or under its control and was, thus, outside of the orbit of its authority. Accordingly, the defendant demonstrated its prima facie entitlement to judgment as a matter of law (see Fotiadis v City of New York, 49 AD3d 499 [2008]; Stagg v City of New York, 39 AD3d 533, 534 [2007]; Morning v Riverhead Cent. School Dist., 27 AD3d 435, 436 [2006]; Ramo v Serrano, 301 AD2d 640, 641 [2003]).

In opposition, the plaintiffs failed to raise a triable issue of fact. They also failed to articulate any nonspeculative basis to believe that discovery might yield evidence warranting a different result (see Stagg v City of New York, 39 AD3d at 534).

Frydman v Fidelity Natl. Tit. Ins. Co., 68 AD3d 622 (App. Div., 1st, 2009)

We have considered plaintiffs' argument that the court improperly converted a breach of contract action into a declaratory judgment action and, without CPLR 3211 (c) notice, converted a motion by [*2]defendant to dismiss the complaint into a motion for summary judgment, and find it to be unavailing (see CPLR 2002; Shah v Shah, 215 AD2d 287, 289 [1995]). This case contains no factual disputes, and by submitting before the Supreme Court every relevant piece of documentary evidence, along with affidavits of representatives of both parties discussing the application of such evidence, the parties have charted a course for summary judgment. Accordingly, the court properly entered a declaratory judgment in favor of defendants.

An application that shouldn't have been denied

Verdi v Ho, 2010 NY Slip Op 02548 (App. Div., 2nd, 2010)

A week prior to the scheduled trial date of this action, the plaintiffs discovered that their medical expert had elected not to testify at trial. Accordingly, the plaintiffs' attorney, in effect, made an application for a continuance in order to obtain a new expert. In response, the defendants' counsel made an application to dismiss the amended complaint. By order dated November 3, 2008, the Supreme Court denied the plaintiffs' application and granted the defendants' application, dismissing the amended complaint with prejudice. Upon reargument, by order dated June 11, 2009, the Supreme Court, inter alia, adhered to so much of its original determination as granted the defendants' application to dismiss the amended complaint. We reverse the order dated June 11, 2009, insofar as appealed from.

"Although an application for a continuance is addressed to the sound discretion of the trial [*2]court, it is an improvident exercise of discretion to deny a continuance where the application is properly made, is not made for the purpose of delay, the evidence is material, and the need for a continuance did not result from the failure to exercise due diligence" (Mura v Gordon, 252 AD2d 485, 485; see Notrica v North Hills Holding Co., LLC, 43 AD3d 1119, 1120; Romero v City of New York, 260 AD2d 461). Balancing the appropriate factors, the Supreme Court improvidently exercised its discretion in, in effect, denying the plaintiffs' application, in effect, for a continuance and in granting the defendants' application to dismiss the amended complaint.

The bold is mine.

CPLR R. 3404 and Judicial Notice

CPLR R. 3404 Dismissal of abandoned cases

Matter of Cento Props. Co. v Assessor, 2010 NY Slip Op 02556 (App. Div., 2nd, 2010)

In the interim, in or around September 1999, Cento filed a note of issue with respect to the original proceeding. Subsequently, on September 25, 2001, the original proceeding appeared on the trial calendar. On that date, pursuant to certain procedures that former Justice Leo F. McGinity had implemented years earlier in an attempt to reduce the backlog of tax certiorari proceedings on the trial calendar, the original proceeding was removed from the trial calendar so the County could obtain a preliminary appraisal, after which the parties could try to settle the matter. Thereafter, the subsequent related proceedings were marked "inactive pre-note." [*2]

Ultimately, on or about November 21, 2007, with the parties unable to reach a settlement, Cento moved to restore the original proceeding to the trial calendar and, in effect, to restore the subsequent related proceedings to active status. The County opposed restoration of both the original proceeding and the subsequent related proceedings. The Supreme Court denied the motion, after which Cento moved to reargue. Upon granting leave to reargue, the Supreme Court granted Cento's motion to restore, holding that (1) restoration of the original proceeding to the trial calendar is appropriate since Cento satisfied the four-prong test for restoring, to the trial calendar, a matter marked "off" the trial calendar pursuant to CPLR 3404 for more than one year, and (2) restoration of the subsequent related proceedings to active status is automatic because the County had failed to serve a 90-day notice pursuant to CPLR 3216. We affirm, but for different reasons.

A review of the information on the New York State Unified Court System E-Courts public website, of which we take judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20), reveals that, when the original proceeding appeared on the trial calendar in 2001, the court marked the case "settled before trial." Accordingly, the original proceeding was not marked "off" or stricken from the calendar pursuant to CPLR 3404 (see Long-Waithe v Kings Apparel Inc., 10 AD3d 413, 414; Baez v Kayantas, 298 AD2d 416; Basetti v Nour, 287 AD2d 126). For the reasons set forth in our determination on a companion appeal (see Matter of Transtechnology Corp. v AssessorAD3d [decided herewith]), the Supreme Court correctly recognized that it misapprehended the law relevant to the instant dispute and, thus, correctly granted that branch of the petitioner's motion which was for leave to reargue and thereupon granted those branches of Cento's motion which were to restore the original proceeding to the trial calendar and, in effect, to restore the subsequent related proceedings to active status.

And one older 3404 decision that I never got around to posting.

Kahgan v Alwi, 67 AD3d 742 (App. Div., 2nd, 2009)

The plaintiff filed her note of issue on January 6, 2005. On November 9, 2005 the case was marked off the trial calendar, at the plaintiff's request, after the defendants moved for summary judgment. Prior to the expiration of one year after the action was marked off the calendar, the plaintiff moved, in or about July 2006, to restore the action to the trial calendar. However, although the notice of motion indicated a return date, this motion never appeared on any court calendar. In January 2008 the plaintiff again moved for an order "restoring this matter to active status for determination on the merits." This motion was denied by the Supreme Court, and we reverse.

CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned (see Sanchez v Denkberg, 284 AD2d 446 [2001]). The court retains discretion to grant a motion to restore a case to the trial calendar after the one-year period has expired (see Ford v Empire Med. Group, 123 AD2d 820 [1986]). Here, it is undisputed that the plaintiff initially moved to restore the matter to the trial calendar within one year after it was marked off and that, for reasons which are not discernible on the record, the court never addressed that motion. Moreover, the record reveals that there was continued activity on the case just before the second motion to restore was made. Although the plaintiff could have more promptly moved a second time to restore the case to the calendar, under all of the circumstances, we conclude that there was a reasonable excuse for the delay in prosecution and a lack of intent to abandon the action (see Drucker v Progressive Enters., 172 AD2d 481 [1991]). Furthermore, the plaintiff has demonstrated a meritorious cause of action and a lack of prejudice to the defendant. Accordingly, the Supreme Court improvidently exercised its discretion in refusing to restore the matter to the trial calendar (see Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]; Acciarito v Homedco, Inc., 237 AD2d 236 [1997]).

One way out of a mortgage CPLR R. 3215(c)

JBR Constr. Corp. v Staples, 2010 NY Slip Op 02514 (App. Div., 2nd, 2010)

RPAPL 1501(4) provides that "[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired," any person with an estate or interest in the property may maintain an action "to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom" (RPAPL 1501[4]). Here, the plaintiff property owner made a prima facie showing of its entitlement to judgment as a matter of law declaring that the subject mortgage is invalid by establishing that a foreclosure action commenced by the defendant mortgagee in 2001 was dismissed by this Court as abandoned pursuant to CPLR 3215(c) (see Staples v Jeff Hunt Devs., Inc., 56 AD3d 459), and that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see CPLR 213[4]; LePore v Shaheen, 32 AD3d 1330, 1331; Corrado v Petrone, 139 AD2d 483; see also Plaia v Safonte, 45 AD3d 747; Zinker v Makler, 298 AD2d 516). In opposition, the defendant failed to raise a triable issue of fact as to whether the statute of limitations was tolled or revived (see Alvarez v Prospect Hosp., 68 NY2d 320; Rack v Rushefsky, 5 AD3d 753). Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment declaring that the subject mortgage is invalid and directing the County Clerk of Dutchess County [*2]to cancel it (see LePore v Shaheen, 32 AD3d 1330; Corrado v Petrone, 139 AD2d 483).

That branch of the plaintiff's motion which sought cancellation of the notice of pendency filed in connection with the dismissed foreclosure action was not addressed by the Supreme Court. Accordingly, that branch of the plaintiff's motion remains pending and undecided, and the issues raised with respect thereto are not properly before us (see Lend-Mor Mtge. Bankers Corp. v Nicholas, 69 AD3d 680; Fremont Inv. & Loan v Delsol, 65 AD3d 1013, 1015; Zellner v Tarnell, 65 AD3d 1335, 1337; Katz v Katz, 68 AD2d 536, 542-543).

The bold is mine.

CPLR § 202 "Borrowing statute"

CPLR § 202 Cause of action accruing without the state

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 2010 NY Slip Op 02489 (App. Div., 1st, 2010)

When a nonresident sues in New York's courts on a cause of action accruing outside the state, our "borrowing statute" (CPLR 202) requires that the cause of action be timely under the limitation periods of both New York and the jurisdiction where the claim arose (see Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]). Generally, a tort action accrues "at the time and in the place of the injury," and "[w]hen an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss" (id. at 529).

Applying these principles, it is clear that plaintiffs' legal malpractice claim accrued in California, where their residences and principal place of business were located and the alleged economic injury was sustained, at the latest, in March 2006. Under that state's applicable one-year statute of limitations (Cal Civ Proc Code § 340.6), this action, commenced in November 2007, was time-barred.

Note the difference in 202 where the plaintiff is a resident of New York.

"the case is already in the gate, so to speak"

Rubin v SMS Taxi Corp., 2010 NY Slip Op 02414 (App. Div., 1st, 2010)

As the motion court found, defendants met their initial burden of producing evidentiary proof in admissible form sufficient to show that plaintiff's neck and back injuries did not meet any serious injury thresholds. Plaintiff's medical submissions were devoid of information to substantiate his 90/180 claim. The plaintiff also failed to raise an issue of fact as to any other category from Insurance Law § 5102 because he did not show: (1) what medical tests were performed, (2) the objective nature of the tests, (3) what the normal range of motion should be and (4) the significance of plaintiff's limitations. Plaintiff thus failed to raise an issue of fact as to the claims for permanent loss, permanent consequential limitation and significant limitation of use of a body part, system or function (see Marsh v City of New York, 61 AD3d 552 [2009]; Valentin v Pomilla, 59 AD3d 184, 186 [2009]). Further, plaintiff's unsworn affirmation is insufficient to explain his cessation of treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]).

Plaintiff also failed to offer the requisite competent medical proof of incapacity during 90 of the first 180 days following the accident (see Moses v Gelco Corp., 63 AD3d 548 [2009]; Dr. Valderrama's assertion that he advised plaintiff to take off from work until at least July 10 after [*2]the June 16 accident does not satisfy this requirement. Plaintiff's claimed inability to perform his job was also not supported by documentation from his employer (see Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]).

However, the motion court found that plaintiff did meet the serious injury threshold on his claim for significant disfigurement of a body part in that the scar on his face "is permanent, discolored and no treatment can improve it." This portion of the motion court's ruling is not an issue on appeal. At issue on the motion for clarification or reconsideration is whether or not plaintiff can still present to the jury the injuries the court found did not meet the "serious injury" threshold within the meaning of Insurance Law § 5102(d). "Once a prima facie case of serious injury has been established and the trier of fact determines that a serious injury has been sustained, plaintiff is entitled to recover for all injuries incurred as a result of the accident" (Obdulio v Fabian, 33 AD3d 418, 419 [1st Dept 2006]; see also Prieston v Massaro, 107 AD2d 742 [2d Dept 1985]; Marte v New York City Transit Auth., 59 AD3d 398, 399 [2d Dept 2009]). Consequently, plaintiff is entitled to present his claim involving facial scarring to meet the threshold for serious injury under Insurance Law § 5102(d)(iii) (significant disfigurement). Once a jury determines that plaintiff has met the threshold for serious injury, the jury may award damages for all of plaintiff's injuries causally related to the accident, even those not meeting the serious injury threshold. Whether plaintiff's back and neck injuries were causally related to the accident are questions of fact for the jury to resolve.

The legislative intent of New York's No-Fault law was to "significantly reduce the number of automobile personal injury cases litigated in the courts," (Licari v Elliot, 57 NY2d 230, 236 [1982]) and to "weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 NY2d [1995]). Accordingly, once an alleged claim meets at least one of the serious injury thresholds, the statute's gate keeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied. As the case is already in the gate, so to speak, judicial economy is no longer a reason to preclude plaintiff from presenting to the jury all injuries causally related to the accident. This comports with the general principle that a plaintiff is entitled to recover damages that justly and fairly compensates him or her for all injuries proximately caused by the accident.

The court denied the motion for reconsideration or clarification of the initial order, but because it did address the merits in adhering to the initial determination, the subsequent order is appealable (see Nawi v Dixon, 59 AD3d 363, 364 [2009]).

The bold is mine.

Not Aggrieved (CPLR § 5511)

DKFT Pizza, Inc. v Riviera Plaza, LLC, 2010 NY Slip Op 02086 (App. Div., 2nd, 2010)

Only "[a]n aggrieved party or a person substituted for him may appeal from any appealable . . . order" (CPLR 5511). "A party is aggrieved by an order when it directly affects that party's individual rights" (Berrechid v Shahin, 60 AD3d 884, 884; see Carollo v Northern Westchester Hosp. Ctr., 5 AD3d 715). Since the Supreme Court's order, which preliminarily enjoined the defendants DCB Food Services Corp., d/b/a Sandella's Cafe, and Danielle DiBenedetto from selling certain food and beverage items at their cafÉ, did not affect the rights of the defendants Riviera Plaza, LLC, and Riviera Plaza Associates, the latter two are not aggrieved by the order, and the appeal must be dismissed (see generally Matter of Commercial Bank of Informatics & Computing Technique Dev. Bank Informtechnika v Ostashko, 274 AD2d 516; Law v Benedict, 197 AD2d 808; see also Won's Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 162).

The bold is mine.

Civil Contempt

Astrada v Archer, 2010 NY Slip Op 02078 (App. Div., 2nd, 2010)

Contrary to Felton's contention, the Supreme Court properly granted that branch of the plaintiff's motion which was to hold her in contempt of court based upon her failure to comply with the order dated February 14, 2007. In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged violated a clear and unequivocal court order, thereby prejudicing a right of another party to the litigation (see Judiciary Law § 753[A][3]; Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 686; Goldsmith v Goldsmith, 261 AD2d 576, 577). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party (see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d at 686; Yeshiva Tifferes Torah v Kesher Intl. Trading Corp., 246 AD2d 538).

This next one provides a comparison to the requirements for criminal contempt.

Town of Riverhead v T.S. Haulers, Inc., 68 AD3d 1103 (App. Div., 2nd, 2009)

To prevail on a motion to punish for civil contempt, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct (see Coyle v Coyle, 63 AD3d 657, 658 [2009]; Kalish v Lindsay, 47 AD3d 889 [2008]; Galanos v Galanos, 46 AD3d 507 [2007]; Biggio v Biggio, 41 AD3d 753 [2007]; Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 859 [2006]). To prevail on a motion to punish for criminal contempt, the movant must establish, beyond a reasonable doubt, the willful disobedience of a court's lawful mandate (see Judiciary Law § 750 [A] [3]; § 751; Muraca v Meyerowitz, 49 AD3d 697 [2008]; see also Matter of Rubackin v Rubackin, 62 AD3d 11, 19 [2009]). Here, the plaintiff did not meet its burden (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130 [2008]; Panza v Nelson, 54 AD2d 928 [1976]). Therefore, the hearing court properly denied the plaintiff's motion to hold the defendant in civil and/or criminal contempt.

The bold is mine.

Jurors: CPLR § 4106 (Alternates) and and CPLR § 4113 (Disagreements)

CPLR § 4106 Alternate jurors
CPLR § 4113 Disagreement by jury
(a) Unanimous verdict not required.  A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.

(b) Procedure where jurors disagree.  Where five-sixths of the jurors constituting a jury cannot agree after being kept together for as long as is deemed reasonable by the court, the court shall discharge the jury and direct a new trial before another jury.

This is the first time 4113 appears on this blog.  We are going to throw a party.  Huzzah.

Cornell Univ. v Gordon, 2010 NY Slip Op 02072 (App. Div., 1st, 2010)

Plaintiffs, who are defendant's landlord, originally sought attorneys' fees pursuant to a stipulation of settlement that provided for such fees in the event of defendant's noncompliance with the stipulation, and were awarded a money judgment. Inasmuch as $31,434.43 of the judgment on appeal was awarded to compensate plaintiffs for their attorneys' fees incurred in enforcing the money judgment, as opposed to enforcing the stipulation underlying the money judgment, that portion of the jury award amounted to a "fee on a fee" not expressly authorized by the stipulation or by statute, and is therefore not recoverable (see David Z. Inc. v Timur on Fifth Ave., 7 AD3d 257, 258 [2004]; Getty Petroleum Corp. v G.M. Triple S. Corp., 187 AD2d 483, 484 [1992]).

The fee award of $15,000, compensating plaintiffs' attorneys for their efforts to compel defendant's compliance with the term of the stipulation that required defendant, at her sole cost and expense, to remove the final remaining Department of Buildings violation issued against the building because of her unauthorized apartment renovation, was not excessive under the circumstances.

Inasmuch as defendant fully consented to -— indeed even proposed -— having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the 6 to 2 jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113(a) that a verdict must be rendered by not less than five-sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241, 241 [2007]). We note, however, with respect to the merits, that while [*2]CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.

We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

The bold is mine.