theCPLRblog

Mutual Mistake

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

Asset Mgt. & Capital Co., Inc. v Nugent, 2011 NY Slip Op 05438 (App. Div., 2nd 2011)

"Stipulations of settlement are favored by the courts and not lightly cast aside . . . . Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, [mutual] mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (Hallock v State of New York, 64 NY2d 224, 230 [citations omitted]). "For a party to be entitled to reformation of a contract on the ground of mutual mistake, the mutual mistake must be material, i.e., it must involve a fundamental assumption of the contract" (True v True, 63 AD3d 1145, 1147). "A party need not establish that the parties entered into the contract because of the mutual mistake, only that the material mistake . . . vitally affects a fact or facts on the basis of which the parties contracted'" (True v True, 63 AD3d at 1147, quoting Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d 203, 214). Moreover, "proof of [mutual] mistake must be of the highest order,' [and] must show clearly and beyond doubt that there has been a [mutual] mistake' and . . . must show with equal clarity and certainty the exact and precise form and import that the instrument ought to be made to assume, in order that it may express and effectuate what was really intended by the parties'" (Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d at 215, quoting 13 Williston, Contracts [3d ed], § 1548, at 125; see Amend v Hurley, 293 NY 587, 595). "Because the thrust of a reformation claim is that a writing does not set forth the actual agreement of the parties, generally neither the parol evidence rule nor the Statute of Frauds applies to bar proof, in the form or parol or extrinsic evidence, of the claimed agreement" (Chimart Assoc. v Paul, 66 NY2d 570, 573).

Here, the plaintiffs established that the stipulation of settlement contains a mutual mistake. Specifically, the Condo Analysis Summary (hereinafter the summary) prepared by Michael T. Nugent, sued herein as Michael I. Nugent (hereinafter the defendant), which the parties agree  formed the basis of the stipulation of settlement, reflects that the defendant's expenditures above his one-half ownership interest in the subject premises totaled $83,925. Moreover, throughout this litigation—until he opposed the plaintiffs' motion to reform the stipulation—the defendant consistently asserted, in pertinent part, that he was entitled to "reimbursement of one half of the amounts he has advanced [$83,925] plus interest thereon." As such, the plaintiffs established that, in the stipulation, the parties intended for the defendant to receive, from the proceeds of sale of the subject premises, and before considering other adjustments, one half of $83,925, or $41,962.50.

However, both the stipulation and the summary are silent with respect to the fact that a $20,000 payment was made by the plaintiffs in February 2004 to pay down the mortgage principal on the subject real property. Since the stipulation properly characterized the $20,000 paid by the plaintiffs as a "reimbursement" to the defendant, and the parties intended first to credit the defendant for one half of the expenditures he incurred before crediting the plaintiffs for the $20,000 reimbursement, the Supreme Court properly determined that the amounts ultimately credited to the parties in the stipulation were the product of a mutual mistake, and properly granted the plaintiffs' motion to reform the stipulation so as to direct the defendant to pay to the plaintiffs the sum of $10,000, representing the plaintiffs' overpayment to the defendant.

 

 

3025 and 2106

CPLR R. 3025

CPLR R. 2106

Schwartz v Sayah, 2011 NY Slip Op 03227 (App. Div., 2nd 2011)

Leave to amend pleadings should be freely granted (see CPLR 3025[b]; Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170) in the absence of prejudice or surprise resulting from the delay (see Hartford Cas. Ins. Co. v Vengroff Williams & Assoc., 306 AD2d 435, 436). Moreover, where the motion is made during trial, as here, the court's discretion in deciding the motion for leave to amend should be discrete, circumspect, prudent, and cautious (see Alrose Oceanside, LLC v Mueller, 81 AD3d 574; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828). Leave to amend should not be granted where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Jenal v Brown, 80 AD3d 727; Morton v Brookhaven Mem. Hosp., 32 AD3d 381).

In this case, given the appellant's extensive and unexcused delay in seeking leave to amend, the obvious prejudice which the amendment would create in delaying the trial and confusing the proceedings with collateral issues, and the totally meritless nature of the proposed counterclaim given the absence of allegations regarding an intent to deceive on the part of the plaintiff and damages suffered by the appellant (see generally Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; Boglia v Greenberg, 63 AD3d 973, 975; Pui Sang Lai v Shuk Yim Lau, 50 AD3d 758, 759), the Supreme Court properly denied the motion for leave to amend (see Jenal v Brown, 80 AD3d 727; Tarantini v Russo Realty Corp., 273 AD2d 458, 459; County of Suffolk v Caccavalla, 227 AD2d 511, 513). We note in this regard that the submission by the appellant, an attorney, of an affirmation rather than an affidavit in support of the motion was improper (see CPLR 2106), and that document should have been disregarded because it was not in admissible form (see Matter of Nazario v Ciafone, 65 AD3d 1240, 1241; Lessoff v 26 Ct St. Asso.s., LLC, 58 AD3d 610, 611; Finger v Saal, 56 AD3d 606, 607; Pisacreta v Minniti, 265 AD2d 540).

Disqualification, etc. 2106 too.

Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 2011 NY Slip Op 02639 (App. Div., 2nd 2011)

"The basis of a disqualification motion is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client" (Rowley v Waterfront Airways, 113 AD2d 926, 927; see Matter of Kelly, 23 NY2d 368, 375-376; Ogilvie v McDonald's Corp., 294 AD2d 550, 552). However, "[d]isqualification denies a party's right to representation by the attorney of its choice" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131), and may create "significant hardships" for that party (Solow v Grace & Co., 83 NY2d 303, 310; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 131; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 443).

Accordingly, where the Rules of Professional Conduct (22 NYCRR 1200.0) are invoked in litigation, courts "are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake" (Niesig v Team I, 76 NY2d 363, 369-370; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 443). It is the Supreme Court's responsibility to balance the competing interests, and "[t]he disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court" (Falk v Gallo, 73 AD3d 685, 685; see Cardinale v Golinello, 43 NY2d 288, 292; Matter of Erlanger [Erlanger], 20 NY2d 778, 779; Nationscredit Fin. Servs. Corp. v Turcios, 41 AD3d 802, 802; Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344; Schmidt v Magnetic Head Corp., 101 AD2d 268, 277). Under the circumstances present here, the Supreme Court did not improvidently exercise its discretion when it denied the plaintiff's motion to disqualify the defendant's attorney (see Campbell v McKeon, 75 AD3d 479, 480; Kushner v Herman, 215 AD2d 633, 633; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187, 189; Lopez v Precision Papers, 99 AD2d 507, 508; cf. Morris v Morris, 306 AD2d 449, 452).

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 2011 NY Slip Op 02067 (App. Div., 1st 2011)

Plaintiff law firm demonstrated that defendant's counsel played a vital role in the final settlement negotiations flowing from a settlement offer that plaintiff had allegedly previously procured and that defendant client later accepted, that the negotiations were an important part of the underlying dispute, that defendant's counsel was likely to be a key witness at trial, and that his proposed testimony would be adverse to his client's interests (see Sokolow, Dunaud, Mercadier & Carreras v Lacher, 299 AD2d 64, 75-76 [2002]; Martinez v Suozzi, 186 AD2d 378 [1992]).

While plaintiff improperly submitted the affirmation, rather than affidavit, of a partner (see CPLR 2106), under the circumstances, "this defect was merely a technical procedural irregularity which did not prejudice the defendant" (see Board of Mgrs. of Ocean Terrace Towne House Condominium v Lent, 148 AD2d 408 [1989], lv denied 75 NY2d 702 [1989]; see CPLR 2001).

 

CPLR R. 2106: can't be a party

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

Morrison Cohen LLP v Fink, 2011 NY Slip Op 00779 (App. Div., 1st 2011)

To successfully oppose a motion for leave to enter a default judgment, a defendant must demonstrate a reasonable excuse for the default and a meritorious defense. As a party to the action, although an attorney by profession, defendant was required to submit an affidavit in opposition to plaintiff's motion for a default judgment. His submission of an affirmation instead of an affidavit was improper, "and its contents [were correctly] disregarded by the Supreme Court, thereby rendering the opposing papers insufficient to defeat the plaintiff's motion" (Pisacreta v Minniti, 265 AD2d 540 [1999]). Defendant's papers were deficient for the additional reason that the affidavit of the postal service worker on which he relied to demonstrate the inadequacy of "nail and mail" service pursuant to CPLR 308(4) was notarized by defendant himself, a party to the action.

Defendant is not entitled to relief, in the alternative, under CPLR 317 since he has failed to demonstrate that he "did not personally receive notice of the summons in time to defend" (id.; see Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 517 [2005]).

The bold is mine.

CPLR R. 2106 Affirming a document is not enough

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

State Farm Mut. Auto. Ins. Co. v Hereford Ins. Co., 2010 NY Slip Op 51543(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

By notice of petition and petition dated May 14, 2008, State Farm Mutual Automobile Insurance Company (State Farm) commenced this proceeding to confirm a handwritten arbitration award dated June 19, 2007. Hereford Insurance Company (Hereford) opposed such relief, arguing, inter alia, that State Farm was, in effect, seeking either to vacate a final typewritten arbitration award dated July 7, 2007, thereby reinstating the handwritten award dated June 19, 2007, or to modify the July 7, 2007 award by conforming it to the June 19, 2007 award, and, as such, the proceeding was untimely as exceeding the 90-day time period within which an award may be vacated or modified (see CPLR 7511 [a]). The Civil Court denied the petition and dismissed the proceeding without prejudice to the commencement of a new proceeding, finding that the handwritten award was not in proper form because of a problem with the arbitrator's affirmation (see CPLR 7509). On appeal, State Farm contends that the petition to confirm the handwritten award should have been granted, and Hereford contends, inter alia, that the proceeding should have been dismissed with prejudice as it was not timely commenced.

CPLR 7510 permits a party to confirm an award; however, an award by definition must be in writing, signed and affirmed (CPLR 7507). For a document to be properly affirmed, there must be compliance with either CPLR 2309 or CPLR 2106. Here, the document submitted with the petition does not comply with the requisites of either statute. The handwritten award signed by the arbitrator, dated June 19, 2007, simply states: "This decision is according to my understanding of the current local law and the facts presented. I may not render a decision on a case where I or my company is directly or indirectly interested, or where there is even an appearance of bias. I affirm that I have read [*2]and understand the following."

This is not in an authorized form; the mere statement that a person affirms a document is insufficient (Slavenburg Corp. v Opus Apparel, Inc., 53 NY2d 799 [1981]). State Farm's assertion that arbitrators have been using this vague language for years is irrelevant. Consequently, the Civil Court acted within its discretion in allowing petitioner a further opportunity to submit an award in proper form for confirmation. Accordingly, the order is affirmed.

The bold is mine.

Can't meet prima facie burden by adding new evidence in reply. And CPLR R. 2106

Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 2010 NY Slip Op 01930 (App. Div., 2nd, 2010)

Clove Lakes' failure to make a prima facie showing required the denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Clove Lakes' prima facie burden cannot be met by evidence submitted for the first time in its reply papers (see David v Bryon, 56 AD3d 413; Barrera v MTA Long Is. Bus, 52 AD3d 446).

And you can't submit an affirmation that does not actually affirm. 

Niazov v Corlean Cab Corp., 2010 NY Slip Op 01941 (App. Div., 2nd, 2010)

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied upon, inter alia, the report of an orthopedic surgeon who examined the plaintiff. The report was without any probative value since he failed to affirm the contents of his report under the penalties of perjury, as required by CPLR 2106 (see Magro v He Yin Huang, 8 AD3d 245; Slavin v Associates Leasing, 273 AD2d 372; Baron v Murray, 268 AD2d 495; Cwiekala v Siddon, 267 AD2d 193). Without the report, the defendants could not meet their burden on the motion.

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d 524; Coscia v 938 Trading Corp., 283 AD2d 538).

In both of these cases the motions were denied without needing to look at the opposition papers.  Bad papers get motions denied, even if the opposition papers are horrible.  Even if there are no opposition papers.  The movant still has it's burden.

Finally, parties can't affirm, no matter how hard they swear under penalties of perjury.

Experts & CPLR R. 2106

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

Todman v Yoshida, 2009 NY Slip Op 05257 (App. Div., 1st, 2009)

The court correctly precluded the testimony of plaintiff's expert toxicologist. The foundation for the expert's opinion that plaintiff's alleged health condition was caused by toxic chemicals contained in the wood-stripping agents used by defendant Yoshida in an apartment in the building owned by Brown and Cook-Brown lacked the "specific causation" component, i.e., that plaintiff was exposed to levels of the toxins sufficient to cause the condition (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). While "not required to pinpoint exposure with complete precision," the expert failed even to offer a "scientific expression" of plaintiff's exposure (id. at 449).

He neither provided a measurement of plaintiff's exposure nor employed any of the available methods for reasonably estimating it, such as mathematical modeling or comparing plaintiff's exposure level to those of study subjects whose exposure levels were precisely determined. Absent was any statement that the chemicals in question are capable of causing injury at even the lowest exposure level.

In his affidavit submitted in opposition to defendants' motion, the expert also failed to provide any measurement or estimate of plaintiff's exposure to the subject toxins. While he opined, based on the manner in which Yoshida used the wood-stripping agents, that Yoshida's exposure to the toxins contained in those agents exceeded the limits set by OSHA, "standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate legal causation" (id. at 450). Furthermore, he failed to state any relationship between Yoshida's exposure and that of plaintiff, who occupied a different apartment.

Ortiz v Ash Leasing, Inc., 2009 NY Slip Op 05168 (App. Div., 1st, 2009)

Ortiz's doctor's conclusory statement in July 2008 that the knee operation was related to the August 3, 2006 accident is contradicted by August 30, 2006 X-rays and a September 18, 2006 MRI showing degenerative changes (see Thompson, 15 AD3d at 99), and the doctor's "failure even to mention, let alone explain, why he ruled out degenerative changes as the cause of plaintiff's knee . . . injuries, rendered his opinion that they were caused by the accident speculative" (Valentin v Pomilla, 59 AD3d 184, 186 [2009]; see also Perez v Hilarion, 36 AD3d 536, 537 [2007]).

Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC, 2009 NY Slip Op 04950 (App. Div., 1st, 2009)

Plaintiff's argument that the court abused its discretion by precluding their expert from testifying as to future costs is preserved (see CPLR 5501[a][3]; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 382 [1983]). "Given the lengthy colloquy on the subject, the court obviously was aware of the nature of the objection and, more importantly, it recognized that the issue would be subject to appellate review" (Gallegos v Elite Model Mgt. Corp., 28 AD3d 50, 59 [2005]).

While the "qualification of an expert witness is within the court's sound discretion, and its determination will not be disturbed in the absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Issacs v Incentive Sys., 52 AD2d 550 [1976]). Licensed professionals acting as experts have been found qualified to give their opinions regarding future or estimated costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with estimating costs. The computer database utilized by plaintiff's expert to prepare pre-bid cost estimates was based on the same methodology employed in connection with the completed remediation work — specifications and bids of hundreds of prior projects on which the expert had worked. Furthermore, "any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony," and could have been cured with a limiting instruction to the jury (see Moon Ok Kwon v Martin, 19 AD3d 664 [2005]).

K & J/Gonzalez's argument that it is entitled to set off against the $2,059,692.09 jury verdict the $1,960,000 received from the settling codefendants is unsupported by the record (see e.g. Promenade v Schindler El. Corp., 39 AD3d 221, 222-223 [2007], lv dismissed 9 NY3d 839 [2007]). Based on the explicit language of the second amended complaint, the verdict sheet and the settling agreements, there is no basis for concluding that the jury allocated damages to these defendants based on the same claims or injuries by which plaintiff had entered into its agreements with the settling codefendants. Plaintiff's Amended CPLR 3101(d) Expert Disclosure clearly indicated that this expert's testimony would address construction defects caused by K & J and the "costs to remedy" those defects.

Maffei v Santiago, 2009 NY Slip Op 05298 (App. Div., 2nd, 2009)

The medical reports of Dr. James McWilliam were without any probative value in opposing the defendants' motion because they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; [*2]Pagano v Kingsbury, 182 AD2d 268).

Finally, the plaintiff's affidavit was insufficient to raise a triable issue of fact (see Thomas v Weeks, 61 AD3d 961; Luizzi-Schwenk v Singh, 58 AD3d 811; Gochnour v Quaremba, 58 AD3d 680).

The bold is mine.

CPLR R. 2106

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

The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit.

St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U) (App. Term, 2nd, 2009)

In opposition, plaintiff submitted an affirmation executed by its principal, Dr. Zakharov. Defendant objected to said affirmation in its reply papers, citing CPLR 2106. The submission of Dr. Zakharov's affirmation was improper because he is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A] 2006 NY Slip Op 51055[U] [App Term 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti, 265 AD2d 540 [1999]). Since the Civil Court should not have considered any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Plaintiff's remaining contentions lack merit.

The bold is mine.

The Appellate Division, Second Department decided a similar issue a few month's earlier in Lessoff v 26 Ct. St. Assoc. LLC, 2009 NY Slip Op 00195 (App. Div., 2d 2009).  In that case, the plaintiff was an attorney.  The Court found that CPLR R. 2106 prohibited him from using an affirmation.

CPLR R. 2106

CPLR R. 2106

Fung v Uddin, 2009 NY Slip Op 02560 (App. Div., 2nd, 2009)

Furthermore, the affirmation of the plaintiff's former treating physician, Jeffrey Schwartz, was without probative value because he was no longer licensed to practice medicine at the time the affirmation was written (see CPLR 2106; Worthy v Good Samaritan Hosp. Med. Ctr., 50 AD3d 1023, 1024; McDermott v New York Hosp.-Cornell Med. Ctr., 42 AD3d 346).

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]).