theCPLRblog

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]).

On stipulations, generally.

CPLR R. 2104 Stipulations 

Dental Health Assoc. v Zangeneh, 2011 NY Slip Op 00484 (App. Div., 2nd 2011) 

Zangeneh correctly argues that the parties' stipulation entered into on May 6, 2002, bars this belated claim for disgorgement. "By stipulation, the parties may shape the facts to be determined at trial and thus circumscribe the relevant issues for the court to the exclusion of disputed matters that otherwise would be available to the parties" (Deitsch Textiles v New York Prop. Ins. Underwriting Assn., 62 NY2d 999, 1002; see Roberts v Worth Constr., Inc., 21 AD3d 1074; Nishman v De Marco, 76 AD2d 360). Here, the parties agreed that the accounting issues, as raised in a motion made by the plaintiffs in March 2002, inter alia, to adopt the accounting report, would be the only unresolved issues following the trial of the tort and contract claims. The claim for disgorgement was not raised in the plaintiffs' March 2002 motion. Accordingly, the plaintiffs' belated request for disgorgement should have been denied.

Some stipulations, while seemingly inconsequential, are anything but.

 

Don't Count Your Stips Until They've Hatched (CPLR R. 2104)

While I've been out in beautiful sunny Ohio, this case has been making the rounds.  It was first noticed by John Hochfelder and followed up by the Turk.  Oh, right, the case.

Diarassouba v Urban, 2009 NY Slip Op 09420 (App. Div., 2nd, 2009)

While the court was in recess and the jury was deliberating, Conrad Jordan, counsel for the plaintiff, communicated to the defendants' counsel, Barry M. Viuker, that his client had authorized him to accept a settlement offer in the sum of $150,000. Viuker provided no confirmation of the settlement, but rather asked, "Do we have a settlement?" Jordan responded that [*2]he accepted the settlement offer. Viuker proceeded to leave the room for several minutes, without having responded in any way to Jordan's statement. The defense counsel's question, "Do we have a settlement?" was his only and final mention of the settlement agreement until after the court took the jury's verdict.

During Viuker's absence from the courtroom, Jordan informed the court clerk that the parties had reached a settlement, although he did not provide a specific settlement amount. The clerk did not record this information, but said that he would inform the Judge, who was already on her way to the courtroom to read a new jury note. Viuker then returned to the courtroom. When the judge arrived at the courtroom, Viuker inquired, off the record, as to the contents of the jury note. The Judge responded that the jury had reached a verdict. Once again, Viuker left the room for a short while.

When Viuker returned, Jordan asked the court to memorialize the settlement on the record prior to taking the verdict, but the court refused Jordan's requests.

"Mr. Jordan: Could I put my request on the record?

"The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.

"Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?

"The Court: Because I said what I have to say. Let's proceed."

Viuker was silent throughout this whole exchange.

The verdict was then taken in the plaintiff's favor, finding that Dr. Lubin and Dr. Horiuchi were each 35% at fault for the plaintiff's injury. The jury awarded the plaintiff the sum of $800,000 for past pain and suffering and the sum of $650,000 for future pain and suffering over 30 years.

After hearing the jury verdict, Jordan asserted that the purported stipulation of settlement was invalid on the ground that the court never permitted the settlement terms to go on the record. Jordan further posited that the settlement was invalid on the ground that the defense never consented to the settlement, but rather, was completely silent throughout Jordan's requests to put the settlement on the record.

"The Court: Now [that the verdict has been taken], Mr. Jordan, what is it that you would like to say?

"Mr. Jordan: Now, your Honor, what I will report for the record is that I attempted to talk to the Court about settlement and I watched the defense attorney, while he heard that there was a quick verdict, go outside twice. I heard him come in, and while he was in this courtroom he did nothing to second my application to this Court to put a settlement on the record and the Court did nothing to ask the parties whether there's a settlement on the record. As far as I know, the caselaw is there has to be a settlement on the record to be binding. So, at this point, the position of the plaintiff is that there is not [a] settlement, and there was no settlement."

Thereafter, by order dated March 28, 2008, the Supreme Court granted the defendants' motion to enforce the purported stipulation of settlement. The court determined that the settlement had been made in open court, with the judge on the bench and the court reporter and court clerk in attendance. As such, the court found that it was not necessary for the stipulation to have been placed on the record. The plaintiff appeals. We reverse.

CPLR 2104, the law governing settlements, sets forth that,

"An agreement between parties or their attorneys relating to any matter in an [*3]action other than one made between counsel in open court, is not binding upon a party unless it is in writing subscribed to by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the County Clerk."

Thus, a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record.

Make no mistake about it, this decision is important.  Read the entire decision, then read it again.  Then, go ahead and take a look at Velazquez v St. Barnabas Hosp., 2009 NY Slip Op 09315 (Ct. App. 2009), where the Court of Appeals held:

The parties do not dispute that they agreed to settle the action for a specific amount; however, details regarding conditions of the settlement, including a disputed [*2]confidentiality agreement, were never recorded or memorialized. No agreement was made in open court or filed with the county clerk. Accordingly, it is not binding upon the parties (see CPLR 2104; Matter of Dolgin Eldert Corp., 31 NY2d 1, 9-11 [1972]; Andre-Long v Verizon Corp., 31 AD3d 353, 354 [2d Dept 2006]).

It's almost impossible to wiggle your way out of a stipulation--CPLR R. 2104

Far more parties are finding their stipulations to be oppressive than in the past few months.  I guess that's not true, but there are more appellate decisions on the issue than there have been in the past few months.  And that's close enough for me.  One of the benefits of blogging is that I have the opportunity to notice patterns in appellate law as it develops.  Eventually I hope to see one.  But for now, I'll keep on noting the obvious.  And hopefully, having made you read this, I've made you a little dumber than you were before.  You're welcome.

CPLR R. 2104 Stipulations

ABA Consulting, LLC v Liffey Van Lines, Inc., 2009 NY Slip Op 07923 (App. Div., 1st, 2009)

Next, defendant urges that the settlement agreement should be vacated on the ground of mutual mistake, arguing that the parties must have contemplated reimbursement for tax arrears. However, while mutual mistake may furnish grounds for vacating a written agreement, there is a " heavy presumption that a deliberately prepared and executed written instrument manifest[s] the true intention of the parties'" and the "proponent of reformation must show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties'" (Chimart Assoc. v Paul, 66 NY2d 570, 574 [1986], quoting Backer Mfg. Corp. v Acme Quilting Co., 46 NY2d 211, 219 [1978]). Defendant has not established that the parties came to any agreement, or even contemplated the refund of payments recouped by the taxing authorities, or that either had any knowledge, at the time the settlement agreement was executed, that defendant would be audited. Accordingly, the settlement agreement cannot be vacated on the ground of mutual mistake.

Defendant next argues that the settlement agreement should be vacated on the ground of unilateral mistake, contending that it was induced to pay fees upon the mistaken belief that any audit reducing its tax refunds would entitle it to a proportional refund or credit from plaintiff. However defendant presents no evidence that plaintiff fraudulently induced it to enter into the settlement agreement upon the false representation that it would adjust its fees if additional taxes were found due, as required for a finding that the contract was the product of unilateral mistake (Rosen Auto Leasing, Inc. v Jacobs, 9 AD3d 798, 800 [2004]). In fact, the settlement agreement was an arm's length transaction between businessmen who were represented by counsel, and the terms of plaintiff's compensation was consistent with that set forth in the parties original [*3]consulting agreement. We find no basis on this record for vacating that agreement (see Greater N.Y. Mut. Ins. Co. v United States Underwriters Ins. Co., 36 AD3d 441, 443 [2007]).

Dubi v Skiros Corp., 2009 NY Slip Op 07793 (App. Div., 2nd, 2009)

"Stipulations entered into in open court are favored by the courts and are to be set aside only where there is cause sufficient to invalidate a contract such as fraud, duress, collusion, or mistake" (Feuer v Darkanot, 36 AD3d 753, 753-754; see Ramnarain v Ramnarain, 46 AD3d 655; Hallock v State of New York, 64 NY2d 224, 230; Chernow v Chernow, 51 AD3d 705, 706; Feuer v Darkanot, 36 AD3d 753, 753-754; Desantis v Ariens Co., 17 AD3d 311). In order to vacate a stipulation on the ground of duress, a party "must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing'" (Feuer v Darkanot, 36 AD3d at 754, quoting Polito v Polito, 121 AD2d 614, 614-615). "Generalized contentions that a party felt pressured by the court are insufficient" (Desantis v Ariens Co., 17 AD3d at 311; see Matter of Blackstock v Price, 51 AD3d 914; Ross v Clyde Beatty-Cole Bros. Circus, 26 AD3d 321, 322; Shuler v Dupree, 14 AD3d 548, 549; Cavalli v Cavalli, 226 AD2d 666, 667). In the present case, the record fails to support the plaintiff's contention that the stipulation of settlement was the product of duress.

Castellano v Castellano, 2009 NY Slip Op 07784 (App. Div., 2nd, 2009)

"Stipulations of settlement are favored by the courts and are not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230; see Matter of Siegel, 29 AD3d 914; Shapira v Shapira, 283 AD2d 477, 478 ). "[A]n oral stipulation of settlement with respect to property issues in a matrimonial action, if spread upon the record and found to be fair and reasonable by the court, is not to be disturbed absent a showing of one of the traditional' grounds for vacatur, e.g., fraud, duress, mistake or overreaching" (Zafran v Zafran, 28 AD3d 752, 753, quoting Harrington v Harrington, 103 AD2d 356, 359; see Korngold v Korngold, 26 AD3d 358; Leahy v Leahy, 9 AD3d 351, 352).

Applying these principles to the matter at bar, the Supreme Court properly determined that the plaintiff failed to meet her burden in seeking to set aside the parties' stipulation of settlement (see Dimino v Dimino, 39 AD3d 799, 800; Brennan-Duffy v Duffy, 22 AD3d 699; Jacobs v Jacobs, 234 AD2d 425), and failed to establish that the stipulation of settlement was the result of duress or [*2]overreaching on the part of the defendant (see Garner v Garner, 46 AD3d 1239, 1240; Rubin v Rubin, 33 AD3d 983, 985-986; Chambers v McIntyre, 5 AD3d 344, 345). Accordingly, the court correctly denied the motion to set aside the stipulation of settlement.

Montgomery Trading LLC v Siegel, 25 Misc 3d 128(A) (App. Term, 1st, 2009)

Civil Court properly denied tenants' motion to vacate the two-attorney, so-ordered stipulation of settlement resolving the underlying nonpayment summary proceeding since tenants failed to demonstrate legal cause for such relief, e.g., fraud, collusion, mistake or accident (see Hallock v State of New York, 64 NY2d 224, 230 [1984]). The belated attempt by tenants' incoming counsel to inject into the settled litigation an (unpleaded) rent forfeiture defense not referenced in the stipulation does not provide a proper basis to vacate the binding stipulation, assented to by tenants upon advice of prior counsel.

Parties should think long and hard before they enter into stipulations, because, once they do, it is extremely difficult to get out of it.  It takes more than a sad story or hindsight.  Much more. 

In some cases, what you thought was an email, might very well be a stipulation.  See, Williamson v Delsener, 2009 NY Slip Op 01333 (App. Div., 1s, 2009).  Remember that.

CPLR R. 2104 not applicable to forbearance agreements

CPLR R. 2104 Stipulations

Deutsche Bank Natl. Trust Co. v Williams, 2009 NY Slip Op 04023 (App. Div., 2nd, 2009)

Contrary to the determination of the Supreme Court, a forbearance agreement does not constitute a settlement of the foreclosure action. As a result, the provisions of CPLR 2104 regarding stipulations of settlement have no relevance to the forbearance agreement. Rather, a mortgagee that enters into a forbearance agreement merely refrains from immediately exercising the remedies it may have and grants the mortgagor an extension of time for the repayment of his or her debt (cf. Matter of Delafield 246 Corp. v City of New York, 11 AD3d 268, 272).

Here, the forbearance agreement is clear and unambiguous. As with any such unambiguous contract, the plaintiff was entitled to the enforcement of the agreement according to its terms (see Ross v Sherman, 57 AD3d 758; Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113, 118; Roscar Realty Northeast, Inc. v Jefferson Val. Mall Ltd. Partnership, 38 AD3d 744, 746) and, when Williams defaulted under the terms of that agreement, the plaintiff was entitled to proceed with the foreclosure action (see Option One Mtge. Corp. v Corman, 39 AD3d 724).

The payments made by Williams under the forbearance agreement must, however, be considered as part of the referee's calculation of the amounts owed and credited, as of the date of the foreclosure sale, in determining the proper disposition of the proceeds of the sale (see RPAPL 1355). Accordingly, we remit the matter to the Supreme Court, Kings County, for the entry of an appropriate amended judgment that credits the payments made by Williams in calculating the sum to be awarded to the plaintiff.

The bold is mine.

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 R. 2104

CPLR R. 2104 Stipulations

Canarelli v Canarelli, 2009 NY Slip Op 00322 (App. Div., 2nd)

While a stipulation of settlement may be set aside where there is evidence of fraud, overreaching, mistake, or duress (see Matter of Dillon v Dillon, 257 AD2d 621), the defendant failed [*2]to tender evidence in admissible form sufficient to warrant a hearing on her motion to vacate the parties' stipulation (see O'Shell v O'Shell, 54 AD3d 914, 915; Shockome v Shockome, 53 AD3d 610; Chernow v Chernow, 51 AD3d 705, 706). The defendant's contention that the appointment of a receiver to sell certain real property should be set aside because of a purported failure to comply with the Court Rules (see 22 NYCRR, Part 36) was not raised before the Supreme Court and, therefore, is not properly before this Court (see Sandoval v Juodzevich, 293 AD2d 595, 595-596; Mourounas v Shahin, 291 AD2d 537; Weber v Jacobs, 289 AD2d 226).

The bold is mine.