theCPLRblog

CPLR 5513 5701 5526 3212b 5501

CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal

CPLR § 5701 Appeals to appellate division from supreme and county courts

CPLR R. 5526 Content and form of record on appeal

CPLR § 5501 Scope of review

CPLR R. 3212 Motion for summary judgment

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

We reject plaintiffs' contention that the appeal is untimely because defendant filed its notice of appeal 32 days after it was served electronically with notice of the entry of the order (see CPLR 5513[a]). A New York State Court Electronic Filing (NYSCEF) site confirmation shows the date on which the order with notice of entry was filed electronically and e-mail notifications were sent to counsel for the parties. However, the NYSCEF site's transmission of notification of the entry to e-mail service addresses "shall not constitute service of notice of entry by any party" (22 NYCRR 202.5b[h][3]). "A party shall serve notice of entry of an order . . . on another party by serving a copy of the notification . . . and an express statement that the transmittal constitutes notice of entry" (id.). The only affidavit of service in the record shows that the notice of entry was served on defendant by mail. Thus, defendant had 35 days to notice its appeal (see CPLR 2103[b][2]).

Gross v 141-30 84th Rd. Apt. Owners Corp., 2011 NY Slip Op 04746 (App. Div., 1st 2011)

Although Supreme Court's order was not appealable as of right because it did not decide a motion made on notice (see CPLR 5701[a][2]), in the interest of judicial economy, we nostra sponte deem the notice of appeal a motion for leave to appeal and grant the motion (see CPLR 5701[c]; Winn v Tvedt, 67 AD3d 569 [2009]).

Supreme Court erred in granting plaintiff's application, since plaintiff failed to show that defendants' noncompliance with the court's discovery orders was "willful, contumacious or due to bad faith" (Weissman v 20 E. 9th St. Corp., 48 AD3d 242, 243 [2008]; Dauria v City of New York, 127 AD2d 459, 460 [1987]). Indeed, the record shows that defendants provided plaintiff with the discovery owed pursuant to Supreme Court's most recent order. Prior to that order, most of the delays in the discovery schedule were due to plaintiff's actions. Where, as here, delays in discovery were caused by both parties' actions, the unilateral and drastic sanction of striking the pleadings is inappropriate (Daimlerchrysler Ins. Co. v Seck, 82 AD3d 581 [2011]; Sifonte v Carol Gardens Hous. Co., 70 AD2d 563, 564 [1979]).

Block 6222 Constr. Corp. v Sobhani, 2011 NY Slip Op 04614 (App. Div., 2nd 2011)

"It is the obligation of the appellant to assemble a proper record on appeal, which must contain all of the relevant papers that were before the Supreme Court" (Wen Zong Yu v Hua Fan, 65 AD3d 1335, 1335; see CPLR 5526; Cohen v Wallace & Minchenberg, 39 AD3d 689; Matter of Remy v Mitchell, 60 AD3d 860). Since, under the circumstances, the record here is inadequate to enable this Court to render an informed decision on the merits, the appeal must be dismissed (see Emco Tech Constr. Corp. v Pilavas, 68 AD3d 918, 918-919; Matter of Allstate Ins. Co. v Vargas, 288 AD2d 309, 310).

Cocom-Tambriz v Surita Demolition Contr., Inc., 2011 NY Slip Op 04622 (App. Div., 2nd 2011)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Harsch v City of New York, 78 AD3d 781, 784; Nassau Plaza Assoc., L.P. v Greater N.Y. Mut. Ins. Co., 74 AD3d 1159, 1160). Accordingly, upon searching the record, we award summary judgment to the defendants third-party plaintiffs on the issue of whether the plaintiff sustained a grave injury.

Williams v New York City Health & Hosps. Corp., 2011 NY Slip Op 04662 (App. Div., 2nd 2011)

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

CPLR § 5511 and CPLR § 5701

CPLR § 5511 Permissible appellant and respondent

Santos v County of Westchester, 2011 NY Slip Op 01013 (App. Div., 2nd 2011)

The appeal by the County defendants must be dismissed. Since they did not oppose the City's cross motion before the Supreme Court, they are not aggrieved by the order appealed from (see CPLR 5511).

CPLR § 5701 Appeals to appellate division from supreme and county courts

Wright v Stam, 2011 NY Slip Op 01020 (App. Div., 2nd 2011)

ORDERED that the appeal from so much of the order as granted that branch of the motion which was to appoint a guardian ad litem on the plaintiff's behalf only to the extent of directing a hearing on that issue is dismissed, as no appeal lies as of right from an order directing a hearing to aid in the determination of a motion, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Zoref v Glassman, 44 AD3d 1036); and it is further,

ORDERED that the appeal from so much of the order as, sua sponte, directed the plaintiff to undergo a psychological evaluation is dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Ciprijan v Stone, 65 AD3d 659); and it is further,

The bold is mine.

Interesting to Me (CPLR 3215; 4518; 3121; 602; 3018)

Of all the decisions that came out this past week, these are the ones that I read and though, "hey, that's interesting."

New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (App. Div., 2nd, 2010)

The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff's counsel, and an affidavit of the plaintiff's investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff's investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]). Accordingly, entry of a default judgment against these defendants was properly denied on the papers before the Supreme Court.

Ok, this one is a little older.  I accidentally put it with the others.  But since it's already here, I might as well keep it.

Tucker v Bay Shore Stor. Warehouse, Inc., 2010 NY Slip Op 00134 (App. Div., 2nd, 2010)

Contrary to the defendants' contentions, the Supreme Court did not improvidently exercise its discretion in denying that branch of their motion which was to compel the plaintiff to undergo a second independent medical examination. "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Mattocks v White Motor Corp., 258 AD2d 628, 629 [internal quotation marks and citations omitted]; see Kaplan v Herbstein, 175 AD2d 200). While CPLR 3121 does not limit the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it (see Young v Kalow, 214 AD2d 559; see also Huggins v New York City Tr. Auth., 225 AD2d 732). Here, the defendants failed to show that a further physical examination of the plaintiff was required. While we strongly disapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questions relating to her relevant past medical history, there was no indication by the defendants' examining physician that his prior examination was hindered, or that he required additional information.

Gladstein v Martorella, 2010 NY Slip Op 01732 (App. Div., 1st, 2010)

When parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. Extrinsic and parol evidence are not admissible to create an ambiguity in a written agreement which is complete, clear and unambiguous on its face (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

The agreement herein is unambiguous on its face. Both sale and lease contracts may be utilized in meeting the 75% requirement. "The best evidence of what parties to a written agreement intend is what they say in their writing" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks and citation omitted]). If the parties intended to exclude lease contracts from consideration, they made a mistake in the agreement. "An omission or mistake in a contract does not constitute an ambiguity" (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks and citation omitted]).

Progressive Northeastern Ins. Co. v North State Autobahn, Inc., 2010 NY Slip Op 01779 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07. Inasmuch as the two actions did not involve common questions of law or fact (see CPLR 602[a]), a joint trial was not warranted (see Beerman v Morhaim, 17 AD3d 302, 303).

At the close of the plaintiff's case, which arises out of the defendants' repair of a motor vehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of law on the ground that the plaintiff had failed to establish a prima facie case (see CPLR 4401). The Supreme Court granted the motion on a ground not argued by the defendants, namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehicle without asserting that the payment was, in some [*2]manner, "under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Uniform Commercial Code § 1-207). In granting the motion on that ground, the Supreme Court erred in two respects. First, accord and satisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042; see also Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908). The defendants did not plead accord and satisfaction as an affirmative defense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco Bank N.Y. v Cohn, 215 AD2d 840, 841; cf. Rienzi v Rienzi, 23 AD3d 450). Second, the doctrine of accord and satisfaction is not applicable because it contemplates full knowledge of the facts on the part of both parties who, in effect, enter into a new contract to expeditiously settle a contract dispute (see Horn Waterproofing Corp v Bushwick Iron & Steel Co., 66 NY2d 321, 325). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff's claim is that it was without such knowledge because of the defendants' alleged misrepresentation of material facts. Thus, a new trial is warranted.

We note that, upon retrial, the plaintiff should not be limited to damages in the sum of $2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of the defendant North State Autobahn, Inc., d/b/a North State Custom Auto, but rather to the amount sought in the complaint.

Another older one.

Simmons v New York City Health & Hosps. Corp., 2010 NY Slip Op 01692 (App. Div., 1st, 2010)

The motion court, by declining to grant defendant's motion to dismiss the complaint and ordering discovery, limited to plaintiff's assertion of the insanity toll, necessarily rejected defendant's res judicata defense. Thus, the order at issue, at least to the extent that it denied defendant's motion to dismiss on grounds of res judicata is appealable insofar as it affects a substantial right (see Fellner v Morimoto, 52 AD3d 352, 353 [2008]; CPLR 5701[a][2][v]).

However, contrary to the lower court's implicit conclusion the instant action is in fact barred by res judicata. Plaintiff's prior action was against a doctor employed by defendant, arose from the same course of treatment alleged in the instant action, and was dismissed on statute of limitations grounds. While defendant was not a party to the prior action, as defendant doctor's employer, required to indemnify defendant doctor in the prior action, it was in privy with defendant doctor (Beuchel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; Prospect Owners Corp. v Tudor Realty Servs., 260 AD3d 299 [1999]), the real party in interest in that action (Ebert v New York City Health and Hosp. Corp., 82 NY2d 863, 866-867 [1993]), and the abbreviated statute of limitations applicable to defendant was thus applied to him (see International Shared Servs. v County of Nassau, 222 AD2d 407, 408 [1995]; Urraro v Green, 106 AD2d 567 [1984]). Plaintiff cannot avoid res judicata by varying facts, changing his causes of action and omitting references to the previously named doctor (see Reilly v Reed, 45 NY2d 24, 28-30 [1978]; Marinelli v Assocs. v Helmsley Noyes Co., 265 AD2d 1 [2000]).

The bold, that I will eventually use, will be mine.

Appellate Procedure: I don't know why, but I kind of like this decision

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

Reyes v Sequeira, 2009 NY Slip Op 05986 (App. Div., 1st, 2009)

Supreme Court requested appraisals for both parcels from Skyline Appraisals Inc. and [*3]East Coast Appraisals, and the appraisals were performed. While neither party objected to the appraisals performed by Skyline, defendant sent a letter to Supreme Court objecting to the appraisal performed by East Coast. Defendant was concerned that the East Coast appraisal was inaccurate and greatly undervalued the parcels. Defendant requested a conference between the parties and the court to "resolve" issues relating to the East Coast appraisal; no motion was made by either party for any relief.

...

Without the prompting of a motion, Supreme Court determined the value of the parcels.

...

The court did not discuss the terms of the stipulation of settlement that required the court to determine the value of the properties by averaging two appraisals, and did not explain how its decision to average the three appraisals was consonant with the terms of stipulation of settlement. Nor did the court explain why it believed that one of the valuation methods was to discard the lowest and highest appraisals, a method that would entail no averaging. This appeal by defendant ensued.

Prior to oral argument on this appeal, defendant moved to vacate the stipulations of settlement — both defendant and the court that heard and decided that motion treated the court's August 7, 2007 on-the-record statements as a stipulation; plaintiff, however, asserts that the court gave directives to which the parties did not stipulate. After oral argument of the appeal, Supreme Court granted the motion to vacate. The court concluded that no binding stipulations existed, and stated that the parties were free to conduct disclosure and file a note of issue when the matter was ready for trial. Thus, although the order appears not to have expressly vacated the order on appeal determining the value of the properties, it implicitly does so (see generally Banker v Banker, 56 AD3d 1105, 1107 [2008]; Savino v "ABC Corp.," 44 AD3d 1026, 1027 [2007]; Matter of Jefferson County Dept. of Social Servs. v Mark L.O., 12 AD3d 1037, 1037-1038 [2004], lv denied 4 NY3d 794 [2005]). Moreover, of course, the order on appeal depends entirely on the existence and validity of the stipulations.

Regardless of whether Supreme Court correctly vacated the stipulations that are the [*5]subject of this appeal, the stipulations have been vacated and this appeal is moot because the rights of the parties cannot be affected by a determination of this appeal (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Matter of Feustel v Rosenblum, 6 NY3d 885 [2006] ["Appeal taken as of right from the Appellate Division judgment . . . and motion for leave to appeal from said judgment . . . dismissed as moot upon the ground that the judgment of the Appellate Division has been vacated by a subsequent order of that Court"]; Matter of Rodriguez v Johnson, 45 AD3d 279 [2007], lv denied 10 NY3d 705 [2008] ["Petitioner's appeal is moot because Supreme Court vacated the judgment on appeal"]; Fidata Trust Co. Mass. v Leahy Bus. Archives, 187 AD2d 270, 271 [1992] ["The order on appeal was subsequently vacated and thus rendered moot"]; see also Perez v Morse Diesel Intl., 10 AD3d 497 [2004]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5517:1, at 208 [1995] ["If the disposition of [a] motion [to reargue, renew or vacate an order] does substantially affect the original order . . . it may have some impact on the appeal. If it alters the order in such a way as to remove the grievance that accounts for the appeal, it should abate the appeal"]). Because the appeal has been rendered moot we cannot and do not pass on the issues presented (see Hearst Corp., 50 NY2d at 713-714 ["It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary"]).

The dissent asserts that "by ruling that the intervening order implicitly' vacates the order on appeal, [we] thereby pass[] on a substantive issue" and "render[] an advisory opinion construing both the status of the order appealed from and [the] effect of an order not even before us." As is obvious from our decision, we pass on no substantive issues relating to the rights of the parties. Equally as obvious, we are not "rendering an advisory opinion construing both the status of the order appealed from and [the] effect of an order not even before us." Rather, we simply conclude that the order on appeal is moot (and, as discussed below, nonappealable) and therefore the appeal must be dismissed. Of course, we first conclude that the order vacating the stipulations implicitly vacates the order on appeal. But that conclusion merely reflects the exercise of our jurisdiction to determine our jurisdiction (see United States v Mine Workers, 330 US 258, 291 [1947]).

The dissent states that by moving to vacate the stipulations, defendants "unilaterally prevent[ed] this Court from deciding whether the motion court erred in vacating what appears to be a valid agreement between the parties." In the first place, however, defendants took no "unilateral" action. Defendants made a motion on notice to vacate the stipulations, a motion Supreme Court granted. Second, this Court is not precluded from determining whether the stipulations are valid. To the contrary, we may determine that precise issue should plaintiff perfect his appeal from the order vacating the stipulations.

...

The appeal should be dismissed for another reason — it is from a sua sponte order from which no appeal lies (see Sholes v Meagher, 100 NY2d 333 [2003]; Person v Einhorn, 44 AD3d 363 [2007]; Unanue v Rennert, 39 AD3d 289 [2007]; Diaz v New York Mercantile Exch., 1 AD3d 242 [2003]). In Sholes the Court of Appeals addressed the issue of the appealability of sua sponte orders. There, an attorney was sanctioned by Supreme Court for engaging in frivolous conduct in the course of a personal injury case. From the bench the trial court gave the parties a briefing schedule, requiring the attorney to submit an affidavit explaining why she should not be sanctioned for her conduct and directing her adversary to submit an affidavit detailing his costs and expenditures at trial. After both sides submitted papers, the trial court ordered the attorney to pay her adversary approximately $14,000. The attorney appealed to the Second Department, which dismissed the appeal because the order imposing sanctions did not decide a motion made on notice (295 AD2d 593 [2002]).

The Court of Appeals granted leave and concluded that the Second Department had correctly dismissed the appeal. The Court of Appeals stated that, "[w]ith limited exceptions, an appeal may be taken to the Appellate Division as of right from an order deciding a motion made upon notice when — among other possibilities — the order affects a substantial right. There is, however, no right of appeal from an ex parte order, including an order entered sua sponte" (100 NY2d at 335 [internal citations omitted]). The Court also stated "[t]hat an order made sua sponte is not an order deciding a motion on notice is apparent from various CPLR provisions, including the definition of motion (see CPLR 2211) and the provision for dismissal for failure to prosecute, which distinguishes between a court initiative' and a party's motion' (see CPLR 3216)" (id. at 335 n 2). While the trial court had created a procedure to ensure that the parties had an opportunity to be heard before the court acted, the Court stressed that "the submissions ordered sua sponte by the trial court were not made pursuant to a motion on notice as contemplated by CPLR 5701(a)(2). While the procedure in this particular case may well have produced a record sufficient for appellate review, there is no guarantee that the same would be true in the next case. Moreover, the amount of notice will vary from case to case, and its sufficiency may often be open to debate. Adherence to the procedure specified by CPLR 5701(a) uniformly provides for certainty, while at the same time affording the parties a right of [*7]review by the Appellate Division. We are therefore unwilling to overwrite that statute" (id. at 336).

As is evident from the briefs, the record and the attorneys' statements at oral argument, the order determining the value of the parcels was not the product of a motion made on notice. Rather, that order was issued sua sponte and therefore is not appealable as of right (id.; Person, supra; Unanue, supra; Diaz, supra).

The bold is mine.

Maybe it's the dissent.  Maybe it's the procedural wonk in me.  Maybe I'm just weird.  But I like this decision.

CPLR § 5701(a)(2)

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

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

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

The bold is mine.

22 NYCRR 130-1.1;

22 NYCRR 130-1.1 Costs; sanctions

(a) Appeals as of right
2. from an order not specified in subdivision 

(c) Appeals by permission

CPLR § 5701 Appeals to appellate division from supreme and county courts

RKO Props. Ltd. v Boymelgreen, 2009 NY Slip Op 03709 (App. Div., 2nd, 2009)

"[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms'" (Reiss v Financial Performance Corp., 97 NY2d 195, 198, quoting W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162). Here, contrary to the appellants' contention, the Supreme Court did not rewrite the parties' stipulation of settlement. Rather, by directing the appellants to provide the general releases to the respondents, the court properly enforced the stipulation according to its terms. By agreeing to the subsequent stipulation and order dated August 16, 2007, and accepting payment of the settlement amount, the plaintiff waived any alleged breach of the stipulation of settlement.

The appeal from so much of the order entered January 28, 2008, as, sua sponte, directed a hearing must be dismissed, as no appeal lies as of right from an order entered sua sponte or from an order directing a hearing, and leave to appeal from that portion of the order has not been granted (see CPLR 5701[a][2], [c]; Shabtai v City of New York, 308 AD2d 532, 533; Matter of Kohn v Lawrence, 240 AD2d 496, 496-497).

Badillo v Badillo, 2009 NY Slip Op 03681 (App. Div., 2nd, 2009)

Under the circumstances herein, the plaintiff did not engage in sanctionable conduct by opposing the defendant's motion, inter alia, to vacate a portion of a prior support order (see 22 NYCRR 130-1.1; Rennie-Otote v Otote, 15 AD3d 380, 381; Hamilton v Cordero, 10 AD3d 702, 703; Stow v Stow, 262 AD2d 550, 551; see also Arciniega v Arciniega, 48 AD3d 607). Moreover, the Supreme Court did not follow the proper procedure for imposing a sanction, since it failed to specify in a written decision the conduct upon which the award was based, the reasons why it found the conduct to be frivolous, and the reasons the sanction was fixed in the sum indicated (see 22 NYCRR 130-1.2; Rennie-Otote v Otote, 15 AD3d at 381; Hamilton v Cordero, 10 AD3d at 703; Miller v DeCongilio, 269 AD2d 504; Gossett v Firestar Affiliates, 224 AD2d 487). The plaintiff's contention that the Supreme Court improperly denied her request for sanctions against the defendant is not properly before this Court (see 22 NYCRR 130-1.1[d]; Kane v Triborough Bridge & Tunnel Auth., 40 AD3d 1040, 1041-1042; Jandru Mats v Riteway AV Corp., 1 AD3d 565, 566; Telemark Constr. v Fleetwood & Assoc., 236 AD2d 462; see also Matter of Mercury Ins. Group v Ocana, 46 AD3d 561, 562).

The bold is mine.

CPLR § 3026; CPLR § 6514; 22 NYCRR 130-1.1; CPLR § 5701; Standing

CPLR § 3026 Construction

CPLR § 6514 Motion for cancellation of notice of pendency

(c) Costs and expenses

22 NYCRR 130-1.1 Costs; sanctions

Congel v Malfitano, 2009 NY Slip Op 03122 (App. Div., 2nd, 2009)

On a motion to dismiss a complaint for failure to state a cause of action, the challenged [*2]pleading is to be construed liberally (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87; Bernberg v Health Mgt. Sys., 303 AD2d 348, 349). Accepting the facts alleged as true, and according the plaintiff the benefit of every possible favorable inference, the court must determine only whether the facts alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88; Bernberg v Health Mgt. Sys., 303 AD2d at 349). However, where, as here, the moving party has submitted evidentiary material, the court must determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Pincus v Wells, 35 AD3d 569, 570).

The defendant waived the defense of lack of standing by failing to raise it in his answer or in his initial moving papers to dismiss the complaint (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242; Lewis v Boyce, 31 AD3d 395, 396). In any event, contrary to the defendant's contention, the plaintiffs possess standing (see Benedict v Whitman Breed Abbott & Morgan, 282 AD2d 416, 418; Shea v Hambro Am., 200 AD2d 371, 372).

However, the Supreme Court should not have awarded the plaintiffs costs and disbursements under CPLR 6514(c). CPLR 6514(c) authorizes an award of costs and disbursements if the cancellation of the notice of pendency is made pursuant to that section. Here, however, the Supreme Court invoked its "inherent power," and not CPLR 6514, to cancel the notice of pendency (see Nastasi v Nastasi, 26 AD3d 32, 36; 13-65 Weinstein, Korn, & Miller, New York Civil Practice: CPLR ¶ 6514.11 [2008]). Thus, the Supreme Court had no authority to award costs and disbursements under CPLR 6514(c) (see Ryan v La Rosa, 22 Misc 2d 125), and the plaintiffs never requested costs pursuant to 22 NYCRR 130-1.1. Accordingly, the Supreme Court should have denied that branch of the plaintiffs' motion. [*3]

In order to determine the amount of costs and disbursements to which the plaintiffs were purportedly entitled, the Supreme Court appointed a referee and directed the defendant to pay the referee's fee. Despite our conclusion that the hearing should not have been held in the first instance, it has already taken place. Accordingly, we direct the plaintiffs to pay one half of the referee's fee and the defendant to pay one half of the referee's fee.

CPLR § 5701 Appeals to appellate division from supreme and county courts

(a) Appeals as of right
2. from an order not specified in subdivision (b), where the motion it decided was made upon notice and it:

(v) affects a substantial right

(c) Appeals by permission

Robertson v United Equities, Inc., 2009 NY Slip Op 03149 (App. Div., 2nd, 2009)

The appeal from so much of the amended order as directed a hearing to aid in the disposition of the motion of the defendant United Equities, Inc., which was for an award of an attorney's fee and to impose a sanction against the plaintiffs and/or their attorney, pursuant to 22 NYCRR 130-1.1, is not appealable as of right, as it did not determine that motion and did not affect a substantial right (see CPLR 5701[a][2][v], [c]; Youngquist v Youngquist, 44 AD3d 1034, 1035), and leave to appeal [*2]has not been granted from that portion of the amended order. Furthermore, the appeal from so much of the amended order as, sua sponte, directed dismissal of the complaint insofar as asserted against the defendant United Equities, Inc., is not appealable as of right, as it did not decide a motion made upon notice (see CPLR 5701[a][2], [c]; Consolidated Resources, LLC v 21-220-230 Owner's Corp., 59 AD3d 579), and leave to appeal has not been granted from that portion of the amended order.

The bold is mine.

CPLR § 5701(a)(2) & (c)

CPLR § 5701 Appeals to appellate division from supreme and county courts

Barry v Barry, 2009 NY Slip Op 02310 (App. Div., 2nd, 2009)

The modification of the defendant's visitation rights did not decide a motion made on notice, and no appeal lies as of right from such an order (see CPLR 5701[a][2]). Nor has leave to appeal been granted (see CPLR 5701[c]). To obtain appellate review, the defendant must move to vacate or modify the order, and appeal, if necessary, from the resulting order (see Sholes v Meagher, 100 NY2d 333; Egwuonwu v Simpson, 4 AD3d 500; Koczen v VMR Corp., 300 AD2d 285).

CPLR DECISIONS (I'll be splitting these up into their own posts in a bit)

CPLR R. 5015 Relief from judgment or order

Toland v Young, 2009 NY Slip Op 01793 (App. Div., 2nd, 2009)

A defendant seeking to vacate its default in appearing or answering the complaint must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Canty v Gregory, 37 AD3d 508; Mjahdi v Maguire, 21 AD3d 1067). The defendants' excuse that their insurance carrier failed to provide a defense was insufficient to excuse their default in serving a timely answer (see Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672; Krieger v Cohan, 18 [*2]AD3d 823, 824; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendants sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519, 520; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144; Mjahdi v Maguire, 21 AD2d at 1068). Accordingly, the defendants' motion to vacate their default was properly denied.

CPLR R 305 Summons; supplemental summons, amendment
(c) Amendment

CPLR R 3025 Amended and supplemental pleadings
(c) Amendment to conform to the evidence.

Smith v Garo Enters., Inc., 2009 NY Slip Op 01790 (App. Div., 2nd, 2009)

"Under CPLR 305(c), an amendment to correct a misnomer will be permitted if the court has acquired jurisdiction over the intended but misnamed defendant . . . provided that . . . the intended but misnamed defendant was fairly apprised that [he] was the party the action was intended to affect . . . [and] would not be prejudiced' by allowing the amendment" (Holster v Ross, 45 AD3d 640, 642, quoting Simpson v Kenston Warehousing Corp., 154 AD2d 526, 527). "Such amendments are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that [*2]the plaintiff was in fact seeking to sue" (Creative Cabinet Corp. of Am. v Future Visions Computer Store, 140 AD2d 483, 484-485; see Ober v Rye Town Hilton, 159 AD2d 16, 20). However, "while CPLR 305(c) may be utilized to correct the name of an existing defendant (see Benware v Schoenborn, 198 AD2d 710, 711-712), it cannot be used by a party as a device to add or substitute a party defendant (see Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d 771, 773)" (Hart v Marriott Intl., 304 AD2d 1057, 1059). A plaintiff may not invoke CPLR 305(c) to proceed against an entirely new defendant, who was not served, after the expiration of the statute of limitations (see Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d 771, 773).

Contrary to the plaintiff's contentions, " [t]his is not a case where a party is misnamed . . .; rather it is a case where the plaintiff seeks to add or substitute a party defendant'" (Achtziger v Fuji Copian Corp., 299 AD2d 946, 947, quoting Jordan v Lehigh Constr. Group, 259 AD2d 962, 962). The plaintiff failed to establish that he properly served Carol Radin, Alvin Radin, and Radin Enterprises, LLC, the proposed additional defendants (see Gennosa v Twinco Servs., 267 AD2d 200, 201; Feszczyszyn v General Motors Corp., 248 AD2d 939, 940; Vandermallie v Liebeck, 225 AD2d 1069, 1069). Having failed to establish that the proposed additional defendants were properly served, the plaintiff was not entitled to the relief he sought pursuant to CPLR 305(c) or CPLR 3025 (see Achtziger v Fuji Copian Corp., 299 AD2d at 947; Gennosa v Twinco Servs., 267 AD2d at 201; Jordan v Lehigh Constr. Group, 259 AD2d at 962; Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d at 773; Feszczyszyn v General Motors Corp., 248 AD2d at 940; Vandermallie v Liebeck, 225 AD2d at 1069).

CPLR R. 2221 Motion affecting prior order
(e) A motion for leave to renew:

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

Ramirez v Khan, 2009 NY Slip Op 01788 (App. Div., 2nd, 2009)

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

CPLR R. 2104 Stipulations

Lim v Choices, Inc., 2009 NY Slip Op 01783 (App. Div., 2nd, 2009)

In support of that branch of its motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint, the defendant established that the parties entered into a stipulation of settlement through the submission of an affidavit of its president, an agreement memorializing the parties' agreement to settle and discontinue the instant action signed by both parties, and a copy of the bank check referenced in the agreement representing full settlement and satisfaction of all claims asserted in the action (see CPLR 2104). In opposition, the plaintiff submitted an affidavit in which he did not deny either signing the agreement or accepting and cashing the bank check. Thus, there was no dispute that the parties entered into a valid "out-of-court settlement [that was] adequately described in a signed writing" (Bonette v Long Is. College Hosp., 3 NY3d 281, 286). Moreover, contrary to the plaintiff's contention, notwithstanding the absence of the filing of a voluntary discontinuance under CPLR 3217, the documentary evidence proffered in support of the motion clearly evidenced the plaintiff's intent to release the defendant from the action (see Gale v Citicorp, 278 AD2d 197; see also Spence v Jones, 51 AD3d 771, 772; Hanna v Ford Motor Co., 252 AD2d 478).

CPLR R. 4404 Post-trial motion for judgment and new trial

Jean-Louis v City of New York, 2009 NY Slip Op 01780 (App. Div., 2nd, 2009)

At trial, the plaintiff testified that she slipped on a piece of metal covered with snow and ice. However, she could not identify the piece of metal shown in a photograph of the accident site that had been taken at some point after the accident. At the end of the plaintiff's testimony, before [*2]two of her witnesses had the opportunity to testify, the defendant New York Transit Authority (hereinafter the defendant) moved pursuant to CPLR 4401(a) for judgment as a matter of law on the ground that the plaintiff could not identify the cause of her fall. The court granted the defendant's motion and dismissed the complaint insofar as asserted against it. The court erred in dismissing the complaint insofar as asserted against the defendant before the plaintiff had completed her proof (see Greenbaum v Hershman, 31 AD3d 607; Balogh v H.R.B. Caterers, 88 AD2d 136, 141). The plaintiff should have been afforded the opportunity to call her niece, who allegedly witnessed the accident, and her expert, to testify (see Greenbaum v Hershman, 31 AD3d 607).

CPLR R. 3211 Motion to dismiss
(a)(3) the party asserting the cause of action has not legal capacity to sue

J. Sackaris & Sons, Inc. v Onekey, LLC, 2009 NY Slip Op 01777 (App. Div., 2nd, 2009)

Contrary to the defendant's contention, the Supreme Court did not err in denying that branch of its motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint on the ground that the plaintiff, as a dissolved corporation, lacks the legal capacity to sue. Since the claim underlying this suit is an alleged breach of contract which occurred in 1998, prior to the plaintiff's dissolution, [*2]it was properly permitted to pursue that claim in the course of winding up its affairs (see Business Corporation Law § 1006[b]; Tedesco v A.P. Green Indus., Inc., 8 NY3d 243).

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

(a)(2)(v)

Iodice v City of White Plains, 2009 NY Slip Op 01775 (App. Div., 2nd, 2009)

An order directing a judicial hearing on a motion to adjudicate a party in contempt does not decide the motion, nor does it affect a substantial right (see CPLR 5701[a][2][v]) and is, therefore, not appealable as a matter of right (see Sloboda v Sloboda, 24 AD3d 533, 534; Liebling v Yankwitt, 109 AD2d 780). Moreover, we decline to grant leave to appeal from the order. Accordingly, the instant appeal must be dismissed (see Kornblum v Kornblum, 34 AD3d 749, 751; Palma v Palma, 101 AD2d 812).

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

Pascucci v Wilke, 2009 NY Slip Op 01846 (App. Div., 1st, 2009)

Plaintiff's failure to submit the clinical psychologist's opinion in admissible form left him with no admissible medical opinion evidence to rebut defendant's prima facie showing that she did not commit malpractice in treating the decedent (see CPLR 2106; Sanchez v Romano, 292 AD2d 202, 203 [2002]).

CPLR § 2201 Stay

American Intl. Group, Inc. v Greenberg, 2009 NY Slip Op 01840 (App. Div., 1st, 2009)

The motion court properly declined to grant a stay of proceedings pending resolution of a related action in federal court (see CPLR 2201; 952 Assoc., LLC v Palmer, 52 AD3d 236, 236-237 [2008]; Mt. McKinley Ins. Co. v Corning Inc., 33 AD3d 51, 58-59 [2006]). Defendants are former executives and/or directors of plaintiff American International Group, Inc. (AIG), the defendant in the federal action; they are current and/or former directors and/or voting shareholders of the plaintiff in the federal action, Starr International Co., Inc. (SICO). In the federal action, AIG asserted [*2]counterclaims against SICO arising out of SICO's alleged obligations to AIG in connection with certain stock. AIG's allegations herein arise out of defendants' alleged independent fiduciary duties to AIG by virtue of their express pledges to preserve the value of said stock. A finding as to SICO's duty to AIG would not affect defendants' potential liability as independent fiduciaries of AIG and would not dispose of or significantly limit the issues involved in this action or pose a risk of inconsistent rulings (see Belopolsky v Renew Data Corp., 41 AD3d 322 [2007]); Asher v Abbott Labs., 307 AD2d 211 [2003]).

CPLR § 5701 Appeals to appellate division from supreme and county courts

Matter of Ronald Anthony G. v Ronald G., 2009 NY Slip Op 01839 (App. Div., 1st, 2009)

Appeal from order, Family Court, New York County (Susan K. Knipps, J.), entered on or about April 23, 2008, which, in a child neglect proceeding, upon respondent-appellant parent's failure to submit papers in opposition to petitioner ACS's motion pursuant to Family Court Act § 1039-b(b)(6) for a finding that reasonable efforts to return the child to his home are not required, reserved decision on the motion in order to afford appellant an opportunity to submit evidence in support of his position that a hearing on reasonable efforts is required, unanimously dismissed, without costs.

In opposition to the motion, which was based on the existence of judgments involuntarily terminating respondents' parental rights to other of their children, appellant submitted no evidence but simply argued that due process necessarily required a hearing. The order on appeal, however, makes no ruling one way or the other as to whether there will be a hearing. While the order does determine that the judgments terminating parental rights satisfied petitioner's initial burden on the motion, and that the burden was thereby placed on respondents to come forward with evidence raising issues of fact bearing on the other inquires to be made on a section 1039-b(b)(6) motion — whether providing reasonable efforts would be in the child's best interests, not contrary to the child's health and safety, and likely to result in reunification of parent and child in the foreseeable future — the order makes no findings of fact. Instead, it affords appellant and his co-respondent an additional opportunity to submit evidence pertinent to these other inquiries, and sets a briefing schedule and a new return date. To the extent the order reserves decision on the [*2]motion, it is not appealable as of right (CPLR 5701[a][2]; see Granato v Granato, 51 AD3d 589, 590 [2008]); to the extent the order imposes a burden on appellant to come forward with evidence, at this juncture, absent a finding dispensing with reasonable efforts, appellant is not aggrieved thereby (CPLR 5511).

CPLR § 105 Definitions

(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

Estate of James Brown v Pullman Group, 2009 NY Slip Op 01838 (App. Div., 1st, 2009)

Denial of renewal was proper because this evidence was available at the time of the initial motion, and the failure to submit it was unexplained (see Matter of Beiny, 132 AD2d 190, 210 [1987], lv dismissed 71 NY2d 994 [1988]). In any event, the purportedly new evidence would not have altered the initial determination (see NYCTL 1999-1 Trust v 114 Tenth Ave. Assoc., Inc., 44 AD3d 576 [2007], appeal dismissed 10 NY3d 757 [2008], cert denied __ US __, 129 S Ct 458 [2008]). Leave to amend was properly denied since the counterclaims had already been [*2]dismissed. We further note that the proposed amendment was unsupported by an affidavit of merit (see Schulte Roth & Zabel, LLP v Kassover, 28 AD3d 404 [2006]) or a verified pleading (CPLR 105[u]).

CPLR § 203 Method of computing periods of limitation generally

17 E. 96th Owners Corp. v Madison 96th Assoc., LLC, 2009 NY Slip Op 01837 (App. Div., 1st, 2009)

Although the first amended complaint did not expressly refer to the underground foundation wall, it did not limit defendant's purported encroachment to the installation of underpinning but included "other encroaching subsurface structures." Thus, the language in the first amended complaint, which envisioned the possibility of other subsurface structures, was sufficiently broad to encompass the encroachment subsequently discovered through the land survey. The proposed new pleading does not, therefore, assert a new and distinct claim but, instead, is based upon the same conduct, transaction or occurrence as that asserted in the first amended complaint (see CPLR 203[f]).

Furthermore, since the proposed new defendant, Condominium, which now owns the building, is the successor-in-interest to the sponsor, Madison 96th Associates, LLC, and not merely an unrelated party with no notice of the subject litigation, plaintiff should also have been permitted to add Condominium as a defendant.

CPLR 3216 Want of prosecution

Smith v Montefiore Med. Ctr., 2009 NY Slip Op 01835 (App. Div., 1st, 2009)

This action for wrongful death, medical malpractice and medical negligence was commenced in 2000. In October 2004, defendants served a 90-day notice (CPLR 3216[b][3]) demanding that plaintiff resume prosecution, complete discovery and file a note of issue. Plaintiff acknowledges "technically" having failed to respond to this notice and instead serving discovery demands upon defendants in July 2005, thereafter attempting to commence settlement negotiations. Defendants served their motion to dismiss in August 2007.

CPLR 3216(e) permits a court to dismiss an action for want of prosecution after the defendants have served the plaintiff with an unheeded 90-day notice, absent a showing of justifiable excuse for the delay and a good and meritorious cause of action. Since the notice was properly served and plaintiff never explained her delay or demonstrated merit in the form of a detailed affidavit from a medical expert, the court's refusal to dismiss was an improvident exercise of discretion (see Mosberg v Elahi, 80 NY2d 941 [1992]; Ramos v Lapommeray, 135 AD2d 439 [1987]). The certificate of merit filed by plaintiff's counsel in October 2000 was not a [*2]valid substitute for a medical expert's affidavit (see Jackson v Bronx County Lebanon Hosp. Ctr., 7 AD3d 356 [2004]).

CPLR § 5701

Tomorrow's Law Jounal (online today), has a great article on CPLR § 5701(a), the provision of the CPLR that sets forth those appeals to the appellate division that are available as of right.  The authors, Thomas R. Newman and Steven J. Ahmuty Jr. focus their article, not on the grounds available, but the limitations of those grounds. 

Before I forget, the article is: N.Y. CPLR § 5701(a): Limitations On Appeals to Appellate Division.

Here is an excerpt:

Classes of Orders

CPLR §5701(b) sets forth the following three classes of orders not appealable as of right: an order which (1) is made in an Article 78 proceeding against a body or officer; (2) requires or refuses to require a more definite statement in a pleading; or (3) orders or refuses to order that scandalous or prejudicial matter be stricken from a pleading.

Even where an order is not appealable as of right, CPLR §5701(c) grants the would-be appellant the right to seek permission to appeal from the judge who made the order or from a justice of the appellate division in the department to which the appeal could be taken, upon refusal by the judge who made the order or upon direct application:

There are, however, some significant limitations on the right of appeal which practitioners should be aware of.

No appeal lies from an evidentiary ruling made during the course of trial or from an order on a motion in limine adjudicating in advance of trial the admissibility of evidence;² one can argue, without success, that such an order "affects a substantial right" of the litigant to present his or her best case or to hamper the adversary from doing so. This is so, even where the motion is made on papers and the court enters a written order to provide the aggrieved party with an appealable paper as "a vehicle for appeal."³ The ruling "constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission."⁴ The provisions of CPLR §5701(c) for obtaining permission to appeal from an order not appealable as of right "were not intended to permit intermediate appeals from evidentiary rulings during trial," as to allow such appeals "would interfere with and impede the trial process."⁵ Moreover, the ultimate rulings during the trial may well depend on the status of the record at the time the particular evidence is offered. Therefore, evidentiary rulings, whether made before or during trial, are only reviewable after trial on an appeal from the final judgment.⁶

Similarly, where an unsuccessful motion for a mistrial is made during the course of the trial, it is not appealable, even if the ruling is embodied in a written order. It can only be reviewed on an appeal from the ensuing judgment entered after trial.⁷ Other nonappealable orders include an order denying a motion to preclude a plaintiffs' expert witnesses from testifying at trial or, alternatively, to subject them to a Daubert hearing.⁸ This is, in effect, an evidentiary ruling and, as such, neither appealable as of right nor by permission.⁹ A ruling by the court prior to trial as to what factors the jury should consider on the issue of comparative negligence would be an advance ruling on the court's charge and, at best, a nonappealable advisory opinion.¹⁰

You'll have to look at the full article for the footnotes.