theCPLRblog

Reading about writing

People are constantly asking me, “Hey Dave, what are some good books on writing, because you are a goddamn genius and know everything,” or something like that.  Sometimes the question starts with “Hey asshole.” 

I’m no expert, but I know enough to know the difference between good writing and great writing.[1]  When I read something that is great, I think, “I want to write like that.”  So I work on writing by reading about writing (and actually writing).  Whenever I run across a book on the subject I usually pick it up.  I subscribe to several blogs about writing—not just legal writing—on my RSS feed.[2]  If there is a lawyer who writes particularly well, I find a way to get a copy of one of his or her briefs.

These are the books on writing I own and I recommend all of them.  Some, if not most of them, have been mentioned before, but never in one place.

• The Winning Brief, Bryan Garner
• Making Your Case, Scalia and Garner
• The Elements of Legal Style, Bryan Garner
• The Art of Styling Sentences, K.D. Sullivan
• 100 Ways to Improve Your Writing, Gary Provost
• Point Made: How to Write Like the Nations’s Top Advocates, Ross Guberman
• On Writing, Steven King
• Write Right, Jan Venolia
• The Elements of Style, Strunk and White
• Clear and Simple as the Truth: Writing Classic Prose, Thomas and Turner[3]

 And these are the writing blogs I subscribe to on my RSS.

• Language Log
• Men With Pens
• There are no rules
• Daily Writing Tips
• Copyblogger
• Write to done
• the (new) legal writer
• The Appellate Record (where I found 100 Ways to Improve Your Writing)
• Legalwriting.net Blog (where I found Point Made)

Of course reading any or all of these books/blogs will not turn you into a virtuoso.  But I’ve seen writing that has dramatically improved after reading Making Your Case alone.  If you don’t have time to read all of them or don’t know where to start, read these three: 

1. Making Your Case (book)
2. Elements of Style (book)
3. The Appellate Record (blog)

You can get through both books in a weekend.  One is very short and the other is very readable.  The blog can be read at your leisure.

Finally, have someone proofreading your writing.  There have been plenty of times that I thought my writing was clear, only to find out that my proofreader didn’t understand.  If my proofreader didn't understand, it means one of two things:  I wasn’t as clear as I thought or the reader is a dumbshit.  Usually it’s my fault, not the reader’s.

---

[1] Anyone can recognize bad writing from good or great writing.

[2] With the kindle, I figured out that you can convert most of the posts to PDFs, then email the PDFs to your kindle, which is really cool.

[3] Recommended by Crime & Federalism.

 

The no-fault

Appellate Division

M.N. Dental Diagnostics, P.C. v Government Employees Ins. Co., 2011 NY Slip Op 01333 (App. Div., 1st 2011)

Insurance Law § 5105(b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12(b) provides that "[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part."

Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not "otherwise [] liable" for the payment of first-party benefits. However, 11 NYCRR 65-4.11(a)(6) provides that "any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section." Thus, as "the first insurer to whom notice of claim [was] given" (11 NYCRR 65-3.12[b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff's claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which "[c]learly . . . is an inter-company dispute subject to mandatory arbitration" (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]).

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 01458 (App. Div., 2nd 2011)

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020).

In opposition to the plaintiff's motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff's claim. The defendant's denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment dismissing the complaint.

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint and should have denied the defendant's cross motion for summary judgment dismissing the complaint.

Appellate Term

Edison Med. Servs., P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 50193(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In the case at bar, defendant proffered no reasonable excuse as to why it served its answer late. Defendant merely asserted that, due to a clerical error, the caption of the answer it ultimately served was incorrect. However, the purported document, which listed the wrong assignor, could not properly be characterized as an answer to the complaint. Moreover, the foregoing error did not establish an excuse for the untimely service of the answer. According to a paralegal employed by defendant's law firm, the answer was served on August 2, 2007, almost four months after the default judgment had been entered. In view of the lack of a reasonable excuse for defendant's default, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]). Accordingly, as the Civil Court did not improvidently exercise its discretion in denying defendant's motion, the order is affirmed.

Pesce, P.J., and Weston, J., concur.

There is a Golia dissent.

GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 50194(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant established that the EUO scheduling letters were timely mailed in accordance with the affiants' employers' standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of its attorneys, who was responsible for conducting the EUOs at issue. He alleged facts sufficient to establish that plaintiff had failed to appear at counsel's former law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Such an appearance at an EUO is a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR]
§ 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Further, contrary to the Civil Court's determination, there is no requirement that EUO scheduling letters conspicuously highlight the time and place of the EUO by use of, among other things, a bold or larger font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted. In light of the foregoing, we reach no other issue.

Infinity Health Prods., Ltd. v American Tr. Ins. Co., 2011 NY Slip Op 50195(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant's proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator's affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) so as to warrant the granting of summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50184(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland's standard office practices and procedures or that the affiants had personally mailed the scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied defendant's motion for summary judgment.

However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs' supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiffs did not establish their prima facie case (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50188(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The papers submitted in support of defendant's cross motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the peer reviewers' opinions that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant's cross motion, plaintiff submitted an affirmation of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope [*2]Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the existence of a triable issue of fact as to the medical necessity of the medical supplies in question, defendant's cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

 

3101; 3103; Common Interest Priv.

CPLR  3101 Scope of disclosure

Ford v Rector, Church-Wardens, Vestrymen of Trinity Church in the City of New York, 2011 NY Slip Op 01064 (App. Div., 1st 2011)

While defendants' discovery request for all plaintiff's home and cellular telephone records dating from six years before the sending of the anonymous faxes that purportedly led to her termination was overly broad and unnecessarily burdensome, the denial of the request in its entirety was inappropriate, given defendants' showing of the need for the discovery. Defendants allege that plaintiff was terminated not in retaliation for commencing a discrimination suit but because of her involvement in the sending of certain anonymous faxes and her dishonesty during the investigation into the sending of the faxes. Plaintiff asserts that she does not know the person who allegedly caused the faxes to be sent. However, there is documentary evidence suggesting that he is her brother-in-law. Thus, we conclude that plaintiff's telephone records, as circumscribed above, for the year preceding the sending of the faxes are "material and necessary" to the defense of this action (CPLR 3101[a]; see Anonymous v High School for Envtl. Studies, 32 AD3d 353, 358 [2006]).

Contrary to defendants' contention, production of the remainder of the information  requested should not be compelled, despite plaintiff's untimely objection to the request (Lea v New York City Tr. Auth., 57 AD3d 269 [2008]; Haller v North Riverside Partners, 189 AD2d 615, 616 [1993]).

American Bank Note Corp. v Daniele, 2011 NY Slip Op 01063 (App. Div., 1st 2011)

Finally, there was no error in permitting defendants to testify at the hearing by means of a live video conference link from Argentina. First, the court quashed the subpoena plaintiffs had originally served on defendants and plaintiffs did not challenge this ruling on appeal. Thus, defendants' appearance via video conference was voluntary. Further, plaintiffs fully participated in that hearing.

Pursuant to CPLR 3103(a), the court may regulate "any disclosure device" in order to "prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. . . " The decision to allow a party or witness to testify via video conference link is left to a trial court's discretion (People v Wrotten, 14 NY3d 33, 37-38 [2009] cert denied __ US __, 130 S Ct 2520 [2010]).

Here, defendant Daniele had not made travel arrangements to come to the United States. There was also a question of whether he could lawfully leave Argentina because of charges plaintiffs filed against him in that country. Thus, coming to New York to testify was "not feasible as a practical matter" (Matter of Singh, 22 Misc 3d 288, 290 (Sup Ct, Bronx County [*2]2008), and would have resulted in hardship (Rogovin v Rogovin, 3 AD3d 352, 353 [2004]). Accordingly it was proper to allow defendants to testify from Argentina via video conferencing.

Mt. McKinley Ins. Co. v Corning Inc., 2011 NY Slip Op 01061 (App. Div., 1st 2011)

In this action seeking a declaratory judgment establishing entitlement to insurance coverage for defense and/or indemnification, the IAS court did not abuse its discretion in ordering the subject documents produced (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]). The motion court properly held that Corning failed to establish that the subject documents were protected by the common interest privilege. While Corning asserted that the documents were "generated in furtherance of a common legal interest" between itself and the committees in the bankruptcy action and that the documents included, communications evincing strategy and preparation for an upcoming confirmation hearing, it submitted no evidence in support of these assertions. Moreover, Corning never stated, let alone established, that it or the committees had a reasonable expectation of confidentiality with respect to these communications. Accordingly, Corning failed to establish that the relevant communications with the committees were in furtherance of a common legal interest and that with respect to these communications, Corning and the committees had a reasonable expectation of confidentiality (see United states v Schwimmer, 892 F2d 237, 243-244 [2d Cir 1989]; In re [*2]Quigley Company, Inc., 2009 Bankr LEXIS 1352, 8-9 [Bankr SD NY 2009].

Yu Hui Chen v Chen Li Zhi, 2011 NY Slip Op 01267 (App. Div., 2nd 2011)

While depositions of parties to an action are generally held in the county where the action is pending (see CPLR 3110[1]), if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d 815; LaRusso v Brookstone, Inc., 52 AD3d 576, 577). Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff's cross motion for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means. The plaintiff demonstrated that traveling from China to the United States for his deposition would cause undue hardship (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d at 815-816; Wygocki v Milford Plaza Hotel, 38 AD3d 237; Rogovin v Rogovin, 3 AD3d 352, 353; Matter of Singh, 22 Misc 3d 288; see also Hoffman v Kraus, 260 AD2d 435, 437; cf. Matter of Albarino, 27 AD3d 556).

In light of our determination that the plaintiff's deposition may be conducted by remote electronic means, the Supreme Court improvidently exercised its discretion in staying all proceedings in the action until the plaintiff could return to the United States for his deposition.

 

3215(c)(f): Defaults

CPLR § 3215 Default judgment

Brown v Andreoli, 2011 NY Slip Op 01060 (App. Div., 1st 2011)

Order, Supreme Court, New York County (George J. Silver, J.), entered June 9, 2010, which, in an action for personal injuries arising out of a motor vehicle accident, granted plaintiff's motion for a default judgment to the extent that if defendant did not file her answer within 45 days of service of the order with notice of entry, a default judgment would be entered against her, unanimously reversed, on the law, without costs, the motion denied, and the complaint dismissed as abandoned. The Clerk is directed to enter judgment accordingly.

Plaintiff failed to demonstrate a reasonable excuse for failing to move for a default judgment until more than one year after defendant's time to answer had expired (see CPLR 3215[c]; Mejia-Ortiz v Inoa, 71 AD3d 517 [2010]). Counsel's proffered explanation for the delay in moving for a default judgment, namely health problems, did not constitute a reasonable excuse since those health problems occurred outside the one-year period in which plaintiff had to move (see Mattera v Capric, 54 AD3d 827 [2008]).

The motion court, after determining that no reasonable excuse had been established, should have dismissed the complaint as abandoned (see CPLR 3215[c]; Perricone v City of New York, 62 NY2d 661, 663 [1984]; Opia v Chukwu, 278 AD2d 394 [2000]).

Midfirst Bank v Al-Rahman, 2011 NY Slip Op 01252 (App. Div., 2nd 2011)

The Supreme Court also properly denied that branch of the appellants' motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale, as they "failed to establish that the plaintiff procured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct" (Tribeca Lending Corp. v Crawford, 79 AD3d at 1020; see Feldstein v Rounick, 295 AD2d 398).

Further, the plaintiff's alleged failure to comply with CPLR 3215(f) did not render the judgment a nullity, or warrant excusing the appellants' default in the absence of a reasonable excuse or a potentially meritorious defense (see Neuman v Zurich N. Am., 36 AD3d 601, 602; Araujo v Aviles, 33 AD3d 830; Coulter v Town of Highlands, 26 AD3d 456, 457).

CPLR R. 3118

CPLR R. 3118 Demand for address of aprty or of person who possessed an assigned cause of action or defense

Matter of Wright-Roberts v Roberts, 2011 NY Slip Op 01136 (App. Div., 1st 2011)

Pursuant to CPLR 3118, respondent, as a party in this action, is required to provide petitioner with a verified statement setting forth his post office address and residence. Moreover, respondent's counsel, who is currently representing respondent in the pending litigation, can also be compelled to disclose his client's address, if it is known by him, without implicating the attorney-client privilege, since "disclosure is necessary for the proper administration of justice" (see Matter of Jacqueline F., 47 NY2d 215, 221 [1979]). It may be unlikely that respondent will comply with an order directing him to disclose his address, given his history of willfully failing [*2]to comply with court orders. However, that does not justify denying petitioner the relief to which she is entitled in the first instance. Respondent should not be

3212; Successive SJ; and stuff

CPLR R. 3212

CPLR R. 3211

11 Essex St. Corp. v Tower Ins. Co. of N.Y., 2011 NY Slip Op 01127 (App. Div., 1st 2011)

The court correctly denied DeSimone's motion for summary judgment on the grounds that it had denied a prior summary judgment motion by DeSimone and no new factual assertions and evidence were submitted or other sufficient cause shown for DeSimone's making the second motion (see Jones v 636 Holding Corp., 73 AD3d 409 [2010]; Forte v Weiner, 214 AD2d 397 [1995], lv dismissed 86 NY2d 885 [1995]).

Lau v 7th Precinct of the Police Dept. of the County of N.Y., 2011 NY Slip Op 01342 (App. Div., 1st 2011)

Although defendants stated in their notice of motion that they sought an order pursuant to CPLR 3212 granting summary judgment, in the supporting affirmation, they argued that the complaint failed to state a cause of action (CPLR 3211[a][7]), and the exhibits annexed to the affirmation consist solely of pleadings. Upon analyzing the pleadings, the motion court granted defendants' motion "for summary judgment . . . dismissing plaintiff's complaint for failure to state a cause of action."

Summary judgment was properly granted although the complaint could have been dismissed pursuant to CPLR 3211(a)(7). Also, plaintiff's argument that the court should have denied defendants summary judgment because the evidence raises issues of fact whether he had a special relationship with the police is unavailing. His General Municipal Law § 50-h hearing testimony is insufficient to establish the elements of such a relationship (see Luisa R. v City of New York, 253 AD2d 196, 203 [1999]; Artalyan, Inc. v Kitridge Realty Co., Inc., 52 AD3d 405, 407 [2008]). Among other things, the police advised plaintiff that they could not help him in this matter and that he would be arrested if he continued to call them. In the face of this evidence, plaintiff cannot establish reasonable reliance upon any purported promise of police protection.

Plaintiff's proposed amended complaint failed to remedy the factual deficiencies in his original complaint (Pacheco v Fifteen Twenty Seven Assoc., 275 AD2d 282, 284 [2000]; Schulte [*2]Roth & Zabel, LLP v Kassover, 28 AD3d 404 [2006]).

Court can't screw with stip

CPLR R. 2104

Genger v Genger, 2011 NY Slip Op 01357 (App. Div., 1st 2011)

While recognizing that, pursuant to the stipulation, plaintiff is entitled to further audits as to the completeness and accuracy of the marital assets and liabilities contained on the marital balance sheet as of January 31, 2002 and valued as of October 26, 2004, the court impermissibly restricted the scope of these audits, essentially rewriting the stipulation by imposing additional terms (see Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173, 182 [1995]). The stipulation is patently unambiguous and clearly evinces the parties' intent (see Chimart Assoc. v Paul, 66 NY2d 570, 574 [1986]). It contains no restriction or limitation on the scope of the audits. The court was not at liberty to alter or change any of the provisions of the stipulation without the consent of both parties (see Leffler v Leffler, 50 AD2d 93, 95 [1975], affd 40 NY2d 1036 [1976]).

Defendant is bound by the contents of the stipulation (see Da Silva v Musso, 53 NY2d 543, 550 [1981]). His assertions are insufficient to rebut "the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties" (Merrick v Merrick, 181 AD2d 503 [1992] [internal quotation marks and citation omitted]).

R. 2221

CPLR R. 2221

Vazquez v JRG Realty Corp., 2011 NY Slip Op 01349 (App. Div., 1st 2011)

No appeal lies from the denial of a motion to reargue (DiPasquale v Gutfleish, 74 AD3d 471 [2010]). Supreme Court also properly denied the motion to renew, as the expert affidavit proffered on renewal was available to plaintiffs prior to the summary judgment motion being fully submitted (see e.g. Estate of Brown v Pullman Group, 60 AD3d 481 [2009], lv dismissed and denied 13 NY3d 789 [2009]). In any event, plaintiffs' expert affidavit was speculative, conclusory, and not based on foundational facts, i.e., an exact measurement of the purported defect, and thus was insufficient to create an issue of fact (Pappas v Cherry Cr., Inc., 66 AD3d 658 [2009]).

 

CPLR § 3012; Judiciary Law § 470

 CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

Judiciary Law § 470

Empire Healthchoice Assur., Inc. v Lester, 2011 NY Slip Op 01412 (App. Div., 1st 2011)

Judiciary Law § 470 requires an attorney admitted to practice in New York who is not a New York resident to maintain an office in this state for the practice of law (see Kinder Morgan Energy Partners, LP v Ace Am. Ins. Co., 51 AD3d 580 [2008]; Lichtenstein v Emerson, 251 AD2d 64 [1998]). Failure of counsel to maintain a local office requires striking of a pleading served by such attorney, without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d 339 [2002]). Thus the court was correct in striking defendants' answer.

The court also properly granted defendants' cross motion pursuant to CPLR 3012(d) for an extension of time to answer (Nason v Fisher, 309 AD2d 526 [2003]). Plaintiff's contention that Judiciary Law § 470 barred the motion court from extending defendant's time to answer is incorrect, since the striking of a pleading under that statute is without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d at 339). Defendants' delay in serving a proper answer was short and the defect in the original answer was attributable to law office failure by defendants' original attorney. Plaintiff was not prejudiced by any delay because the original defective answer was timely served (see Gazes v Bennett, 70 AD3d 579 [2010]). Defendants were not required to demonstrate a meritorious defense in order to be granted relief under CPLR 3012(d) (see Nason, 309 AD2d at 526; DeMarco v Wyndham Intl., 299 AD2d 209 [2002]; Mufalli v Ford Motor Co., 105 AD2d 642 [1984]).

CPLR R. 3025(c): Amend the pleadings to conform to the facts

CPLR R. 3025(c)

Rodriguez v Panjo, 2011 NY Slip Op 01259 (App. Div., 2nd 2011)

In August 2009 the plaintiff moved pursuant to CPLR 3025(c) for leave to amend the complaint to conform to the evidence, and the defendants moved for summary judgment dismissing the complaint. In the order appealed from, the Supreme Court denied the plaintiff's motion and granted the defendants' motion. We reverse.

"Leave to conform a pleading to the proof pursuant to CPLR 3025(c) should be freely granted absent prejudice or surprise resulting from the delay" (Alomia v New York City Tr. Auth., 292 AD2d 403, 406; see Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d 822). Mere lateness is not a barrier to amendment, but it will preclude amendment if it is coupled with significant prejudice to the other side (Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d at 822). Here, the Supreme Court improvidently exercised its discretion by denying the plaintiff's motion for leave to amend the complaint to conform to the evidence as Panjo, having himself been involved in the accident and having spoken to Estaban at the scene, was fully aware of the facts and that the accident involved three vehicles, not two vehicles as originally alleged in the complaint. Furthermore, the details of how the accident occurred, the number of vehicles involved, the make and year of the vehicle which hit the plaintiff's vehicle, and who operated the vehicles, were fully explored at Panjo's deposition. Accordingly, the defendants would not have suffered surprise or prejudice by an amendment of the complaint to conform to the evidence (see Rizzo v Kay, 79 AD3d 1001; Alomia v New York City Tr. Auth., 292 AD2d at 406).