theCPLRblog

4404

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

Ortiz v Jaramillo, 2011 NY Slip Op 03822 (App. Div., 2nd 2011)

"[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court" (Rodriguez v City of New York, 67 AD3d 884, 886; see DeCrescenzo v Gonzalez, 46 AD3d 607, 608). CPLR 4404(a) provides that, "[a]fter a trial . . . by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict . . . and . . . may order a new trial . . . in the interest of justice." A motion pursuant to CPLR 4404(a) should not be granted on this ground unless "substantial justice has not been done, as would occur, for example, where . . . there has been misconduct on the part of attorneys" (Gomez v Park Donuts, 249 AD2d 266, 267 [citations omitted]; see Rodriguez v City of New York, 67 AD3d 884, 885).

Here, the comments of the plaintiffs' counsel, including his repeated denigration of the veracity of defense witnesses and his vouching for the plaintiffs' witnesses, were not isolated, were inflammatory, and were unduly prejudicial. These prejudicial comments so tainted the proceedings as to have deprived the defendant George Tsioulas of a fair trial (see Rodriguez v City of New York, 67 AD3d at 885-886; Brooks v Judlau Contr., Inc., 39 AD3d 447, 449, revd on other grounds 11 NY3d 204; Vassura v Taylor, 117 AD2d 798; see also McArdle v Hurley, 51 AD3d 741, 743; O'Neil v Klass, 36 AD3d 677, 677-678; Pagano v Murray, 309 AD2d 910, 911). Accordingly, the Supreme Court providently exercised its discretion in granting that branch Tsioulas's motion pursuant to CPLR 4404(a) which was to set aside the jury verdict and for a new trial in the interest of justice.

 

CPLR R. 4404 "...obliged to consider all of the evidence..."

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

Bolton v Express, 2010 NY Slip Op 09203 (App. Term Div., 2nd 2010)

The defendants John Ajah and Ejioleh (hereinafter together the defendants) subsequently moved, inter alia, pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for judgment as a matter of law on the ground that the verdict was not supported by legally sufficient evidence. The trial court granted those branches of the motion which were pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for judgment as a matter of law on the ground that the jury verdict was not supported by legally sufficient evidence, stating that the plaintiff had failed to establish that the "defendants' vehicle was, in fact, the vehicle that collided with his vehicle." We reverse the order insofar as appealed from.

For a court to conclude that a jury verdict is not supported by legally sufficient [*2]evidence, there must be no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499; Nicastro v Park, 113 AD2d 129, 132). Any defect in the plaintiff's case was cured by the evidence presented on the defendants' direct case. Contrary to the defendants' contention, in determining whether the plaintiff's initial burden has been established, the Supreme Court is obliged to consider all of the evidence, including the proof adduced by the defendants which cures any defects in the plaintiff's case (see Bopp v New York Elec. Veh. Transp. Co., 177 NY 33, 35; Beck v Northside Med., 25 AD3d 631, 633; Gibson, Dunn & Crutcher v Global Nuclear Servs. & Supply, 280 AD2d 360, 362; Keeton v Cardinal O'Hara High School, 233 AD2d 839; National Bank of N. Am. v Systems Home Improvement, 69 AD2d 557, 562, affd 50 NY2d 814; Calandra v Martino, 2002 NY Slip Op 40050[U], 2002 WL 554315 [App Term, 2nd, 11th Jud Dists 2002]).

 

Judgment as a matter of law CPLR 4401 & 4404

CPLR  R. 4401 Motion for judgment during trial

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

Adler v Bayer, 2010 NY Slip Op 07300 (App. Div., 2nd 2010)

"A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nomoving party" (Hamilton v Rouse, 46 AD3d 514, 516; Tapia v Dattco, Inc., 32 AD3d 842, 844). In considering such a motion, "the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556). 

 

CPLR R. 4404; Court of Appeals

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

Lang v Newman, 2009 NY Slip Op 04696 (Ct. App., 2009)

Plaintiff was transported to a hospital in January 2003 after awakening with numbness on the left side of her body, slurred speech and facial drooping. After arriving in the emergency room, she also developed a headache. Plaintiff was initially treated by defendant [*2]James P. Newman, D.O., but his shift ended and defendant Russell J. Firman, M.D., assumed plaintiff's care. Dr. Firman ordered a CT scan but the test did not definitively rule out the possibility that there was bleeding in plaintiff's brain. A routine neurological examination revealed no abnormalities and plaintiff was administered medication to treat her headache. Plaintiff declined a more invasive procedure to determine if her brain was bleeding and was subsequently discharged with the final diagnosis of a migraine headache.

Shortly after her discharge, plaintiff was examined by her primary care physician, who believed plaintiff may have been experiencing a stroke. Plaintiff was sent to a hospital in Syracuse where an MRI test indicated that she had suffered an ischemic stroke on the right side of her brain. Shortly thereafter, she was admitted to a different hospital where she was given anticoagulant medication to lessen the clotting of her blood and decrease the possibility of a second stroke. As a result of her stroke, plaintiff suffered permanent injuries.

Plaintiff commenced this action against Drs. Newman and Firman, and their medical groups. Although the jury determined that Firman was not liable for failing to administer an anticoagulant drug, it found him liable for failing to admit plaintiff to the hospital and that such negligence was a substantial factor in causing her injuries. The other defendants were found not liable. Plaintiff was awarded $300,000 in damages for past pain and suffering. The Appellate Division affirmed over a two-Justice dissent, concluding that the verdict was supported by legally sufficient evidence. We agree.

Evidence is legally insufficient to support a verdict if "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Plaintiff's expert testified that if Firman had admitted plaintiff to the hospital rather than discharging her, the stroke would have been diagnosed, she would have been given an anticoagulant, and the failure to administer that medicine resulted in "a little larger stroke than she should have had if she was properly treated." Despite the fact that the expert also stated that it was "very hard to quantify" precisely how much additional damage plaintiff suffered as a result of Firman's negligence, we cannot say that the jury's finding of liability on this theory was "utterly irrational" (id.) or that no basis of proof existed to support the verdict. Consequently, the verdict was based on legally sufficient evidence.

Finally, Firman's challenge to the consistency of the verdict is unpreserved and there is no merit to his contention that the damages were speculative.

CPLR R. 4404; Jury Selection

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

Zgrodek v Mcinerney, 2009 NY Slip Op 02524 (App. Div., 3^rd, 2009)

Plaintiffs moved pursuant to CPLR 4404 for various alternative relief including setting aside the verdict regarding pain and suffering and loss of consortium, assessing a damage award for such items, or directing a new trial. Supreme Court denied the motion. Plaintiffs appeal.

We find merit in plaintiffs' argument that Supreme Court placed unduly restrictive time constraints on the questioning of prospective jurors. Over plaintiffs' objections, both before and after voir dire, the court limited questioning in each round to 15 minutes. While the trial court is accorded discretion in setting time limits for voir dire (see 22 NYCRR 202.33; Horton v Associates in Obstetrics & Gynecology, 229 AD2d 734, 735 [1996] [60 minutes for first round and 30 minutes for subsequent rounds upheld]), the 15 minutes allowed for each round under the circumstances of this case was unreasonably short (see "Implementing New York's Civil Voir Dire Law and Rules," http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire 2009.pdf [New York State Unified Court System, Jan. 2009, accessed Feb. 25, 2009], at 6 [stating that "(i)n a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire"]). This case involved close factual and medical issues, and evidence from several experts was presented at trial. Issues implicated involved, among others, proof regarding four distinct injuries and four surgeries, challenges to causation regarding each injury, the relevance and impact of plaintiff's preexisting conditions, the weight to be given evidence from several experts with markedly varying opinions, and consideration of appropriate compensation for a variety of asserted injuries. Notwithstanding that liability was not an issue, the case was not simple and straightforward. We cannot conclude from this record that plaintiffs were not prejudiced by the extremely short time permitted for voir dire.

Adding credence to plaintiffs' first argument is the merit of their next argument, i.e., the jury's verdict deviated materially from reasonable compensation. Initially, we note as to the reasonable compensation issue that, contrary to defendant's contention, the issue is properly before us (see Califano v Automotive Rentals, 293 AD2d 436, 437 [2002]; see also Smith v Sheehy, 45 AD3d 670, 671 [2007]). Although "[i]t is well settled that the amount awarded as damages for personal injuries is a factual question for the jury and considerable deference must be accorded to the jury with regard to the interpretation of the evidence . . . and assessments of credibility" (Molter v Gaffney, 273 AD2d 773, 773 [2000] [internal quotation marks and citations omitted]; see Johnson v Grant, 3 AD3d 720, 722 [2004]), nevertheless a jury verdict will generally be considered flawed when a serious injury under the No-Fault Law is found or conceded, but the jury then makes no award for pain and suffering (see Vogel v Cichy, 53 AD3d 877, 880 [2008]; Gillespie v Girard, 301 AD2d 1018, 1018-1019 [2003]; Califano v Automotive Rentals, 293 AD2d at 437; see also Hayes v Byington, 2 AD3d 1468, 1469 [2003]; Ciatto v Lieberman, 1 AD3d 553, 557 [2003]; 8 Weinstein-Korn-Miller, NY Civ Prac ¶ 4404.22). Here, making no award for past pain and suffering after finding that plaintiff sustained a serious injury was a material deviation from reasonable compensation. Moreover, it cannot be discerned from the record which injuries the jury found were related to the accident or which one (or more) they found to be a serious injury. Under such circumstances, and in light of both the previously discussed error in voir dire and the likelihood that the verdict resulted from an impermissible compromise, we conclude that a new trial on all issues (except liability which defendant conceded) is required (cf. Ciatto v Lieberman, 1 AD3d at 557; Califano v Automotive Rentals, 293 AD2d at 436-437).

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]).