Previous CPLR Cases of the Week
Late summary judgment motion permitted where plaintiff-movant established good cause for the delay
In Panfilow v. 66 E. 83rd St. Owners Corp., 2023 NY Slip Op 03357 (2d Dept. 2023) the motion court denied plaintiff’s motion for summary judgment based upon a violation of Labor Law § 240(1) as untimely. The timeline, order, and bases for making a late motion, are set forth below:
On December 18, 2018, pursuant to a prior court order, the plaintiff filed a note of issue and certificate of readiness which identified outstanding discovery that was set to occur over the three months following the date of the filing of the note of issue.
Approximately two months after the deposition of a representative of the defendant Janbar, Inc. (hereinafter Janbar), was completed, the plaintiff moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The defendants cross-moved for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.
In an order dated March 12, 2020 (hereinafter the March 2020 order), the Supreme Court, inter alia, denied, as untimely, both that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and the defendants’ cross-motion for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.
* * *
Pursuant to the Uniform Civil Term Rules of the Kings County Supreme Court, the parties were required to move for summary judgment no later than 60 days after the filing of the note of issue, unless they obtained leave of court upon good cause shown (see Kings County Supreme Court Uniform Civil Term Rules, part C, rule 6, citing CPLR 3212[a]; Lyebyedyev v Hoffman, 84 AD3d 751, 752, 921 N.Y.S.2d 866). Good cause in this context “requires a showing of good cause for the delay in making the motion” (Brill v City of New York, 2 NY3d 648, 652, 814 N.E.2d 431, 781 N.Y.S.2d 261; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727, 819 N.E.2d 995, 786 N.Y.S.2d 379). Significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129, 733 N.E.2d 203, 711 N.Y.S.2d 131).
Panfilow v. 66 E. 83rd St. Owners Corp., 2023 NY Slip Op 03357 (2d Dept. 2023).
The Second Department held plaintiff had established good cause for the delay in moving for summary judgment:
[P]laintiff demonstrated good cause for his delay in moving for summary judgment (see Munoz v Agenus, Inc., 207 AD3d 643, 644, 173 N.Y.S.3d 18; Alvarez v Eviles, 56 AD3d 500, 500, 867 N.Y.S.2d 528). As an initial matter, we note that the court directed the plaintiff, over the plaintiff’s objection, to file a note of issue or face sanctions or dismissal of the action, despite the fact that a significant amount of discovery, including, inter alia, the depositions of the parties, had yet to occur (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d at 129; Smith v Nameth, 25 AD3d 599, 600, 807 N.Y.S.2d 411). Indeed, together with setting a deadline directing the plaintiff to file a note of issue by December 18, 2018, the court set forth a discovery schedule, contemplating the exchange of discovery by the parties, including depositions, to occur over the three months following the filing of the note of issue. Moreover, shortly after the plaintiff filed the note of issue, he moved for leave to extend the time to move for summary judgment. In an order dated January 28, 2019, the court denied that motion without prejudice and with leave to renew. The parties thereafter substantially complied with the discovery schedule, but the deposition of Janbar’s representative was not completed until June 2019. In August 2019, the plaintiff then moved, inter alia, for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action. Under these circumstances, we find that the plaintiff established good cause for his delay in making the motion (see Brill v City of New York, 2 NY3d at 652; Nisimova v Starbucks Corp., 108 AD3d 513, 514, 967 N.Y.S.2d 838).
Panfilow v. 66 E. 83rd St. Owners Corp., 2023 NY Slip Op 03357 (2d Dept. 2023)
The Second Department reached the merits of the motions rather than remitting, and granted plaintiff summary judgment on the Labor Law § 240(1) cause of action. Noting that the defendant did not offer any excuse for its late cross-motion, the Court nonetheless also reached the merits of the defendants’ cross-motion for summary judgment and dismissed plaintiff’s causes of action alleging a violation of Labor Law § 200 and common-law negligence.
Decision Date: June 21, 2023
Practical Practice Point
The summary judgment landscape was upended in 2004 by the decision of the Court of Appeals in Brill v. City of New York, 2 NY3d 648 (2004). In Brill, nearly one year after the filing of plaintiff’s note of issue, the City moved for summary judgment. The trial court, in the interests of judicial economy, heard the motion since plaintiff did not manifest any prejudice from the delay, and granted summary judgment to the City. The Appellate Division affirmed, and the Court of Appeals reversed, holding that the “Supreme Court should not have considered the merits of the City’s motion for summary judgment.” After reviewing the history of eve of trial summary judgment motions, and the Legislature’s enactment of time limitations in 1996, the Court stated:
We conclude that “good cause” in CPLR 3212(a) requires a showing of good cause for the delay in making the motion – a satisfactory explanation for the untimeliness – rather than simply permitting meritorious, non-prejudicial filings, however tardy. That reading is supported by the language of the statute – only the movant can show good cause – as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be “good cause.”
After concluding that the City did not submit any reason for the delay, the Court concluded: “The violation is clear. What to do is the more vexing issue.” Citing Kihl, the Court stated:
The present scenario, anther example of the sloppy practice threatening the integrity of our judicial system, rests instead on the violation of legislative mandate . . . What is to happen in this case is that summary judgment will be reversed and the case returned to the trial calendar, where a motion to dismiss after plaintiff rests or a request for a directed verdict may dispose of the case during trial. Hopefully, as a result of the courts’ refusal to countenance the statutory violation, there will be fewer, if any, such situations in the future, both because it is now clear that “good cause” means good cause for the delay, and because movants will develop a habit of compliance with the statutory deadlines for summary judgment motions rather than delay until trial looms.”
In Brill the Court acknowledged:
Summary judgment has proven a valuable, practical tool for resolving cases that involve only questions of law. Summary judgment permits a party to show, by affidavit or other evidence, that there is no materials issue of fact, and that judgment may be directed as a matter of law, thereby avoiding needless litigation cost and delay where appropriate, summary judgment is a great benefit both to the parties and to the overburdened New York State trial courts (citations omitted).
Good cause for a late summary judgment motion may not be raised for the first time in reply, see Rivera v. Zouzias, 190 AD3d 994 (2d Dep’t 2021).
Summary judgment is a powerful tool. Make sure not to waive the right to bring a meritorious motion by failing to seek leave and demonstrate good cause when moving beyond the deadline established by the court.
In a 3-2 decision, Third Department reverses the trial court’s determination that a binding stipulation of settlement had been entered into
Matter of Eckert, 2023 NY Slip Op 03270 (3d Dep’t 2023), a Surrogate’s Court proceeding for letters of administration, the decedent’s spouse and daughter each petitioned to be appointed administrator, the daughter commenced an action in Supreme Court for an order declaring decedent and the wife’s marriage null and void on the basis that decedent lacked the mental capacity to marry the wife, and then commenced yet another action in Supreme Court against the wife alleging conversion, undue influence, lack of mental capacity, unjust enrichment and constructive trust in relation to decedent’s non-probate retirement accounts which was ultimately assigned to Surrogate’s Court. The parties were referred to ADR:
The day after the ADR session, the daughter’s counsel sent the wife’s counsel an email (hereinafter the initial email) “to follow up [on] the settlement reached at mediation,” which involved the wife paying the daughter $515,000, setting forth an outline of the terms of the alleged agreement and asserting that he would prepare a draft settlement agreement. The next day, the wife’s counsel responded asking the daughter’s counsel to “[l]eave the timing of payment open” and providing additional terms. A week later, the daughter’s counsel sent a draft of the proposed settlement agreement. The wife’s counsel responded three weeks later asserting that the wife could not settle on the proposed terms as liquidating decedent’s retirement accounts would have “enormous” tax consequences.
Soon after, the daughter moved to enforce the settlement that she claimed was memorialized in the parties’ email exchange. The wife opposed such relief, asserting that no settlement had been reached. Following oral argument, Surrogate’s Court issued a decision and order which, among other things, granted the daughter’s motion and determined that the parties had entered into a binding settlement agreement.
Matter of Eckert, 2023 NY Slip Op 03270 (3d Dep’t 2023)
The Third Department in a decision by Justice Clark reversed, first outlining the policy reasons enforceable stipulations of settlement are favored:
Stipulations of settlement are judicially favored resolutions of pending litigation and “are subject to the same well-settled principles that govern the interpretation of a contract” (Jenkins v Jenkins, 145 AD3d 1231, 1234, 44 N.Y.S.3d 223 [3d Dept 2016]; see Graziano v Andzel-Graziano, 196 AD3d 879, 881, 151 N.Y.S.3d 506 [3d Dept 2021]). To form a binding contract, “there must be a meeting of the minds, [so] that there is a manifestation of mutual assent [that is] sufficiently definite to assure that the parties are truly in agreement with respect to all material terms” (Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448, 45 N.Y.S.3d 864, 68 N.E.3d 683 [2016] [internal quotation marks and citations omitted]). Importantly, to ensure that an agreement is enforceable as a stipulation of settlement, its terms must be placed on the record “in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys” (Marpe v Dolmetsch, 256 AD2d 914, 914, 681 N.Y.S.2d 840 [3d Dept 1998]; seeCPLR 2104). As the Court of Appeals has explained, “[i]f settlements, once entered, are to be enforced with rigor and without a searching examination into their substance, it becomes all the more important that they be clear, final and the product of mutual accord. These concerns obviously lie at the heart of CPLR 2104, a neutral statute enacted to promote certainty in settlements, which benefits all litigants” (Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 286, 819 N.E.2d 206, 785 N.Y.S.2d 738 [2004]; see David D. Siegel & Patrick M. Connors, New York Practice § 204 [6th ed, Dec. 2022 update]).
Matter of Eckert, 2023 NY Slip Op 03270 (3d Dep’t 2023)
The Court explained the reason for reversing:
Here, Surrogate’s Court erred in finding that a binding agreement was formed, as the parties did not mutually assent to all material terms. To the extent that the daughter’s counsel asserts that the initial email set out an overview of the material terms to which the parties agreed during the ADR session, we note that such verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement (see CPLR 2104; Bonnette v Long Is. Coll. Hosp., 3 NY3d at 286; see e.g. Marpe v Dolmetsch, 256 AD2d at 914). The initial email and the subsequent correspondence also fail to establish that the parties reached an agreement. Following the initial email, the wife’s counsel responded, asking the daughter’s counsel to “[l]eave the timing of payment open” in the draft settlement, and he suggested additional terms for the draft.1Following the long-standing principle that “where the recipient of an offer is under no duty to speak, silence, when not misleading, may not be translated into acceptance merely because the offer purports to attach that effect to it” (Matter of Albrecht Chem. Co. [Anderson Trading Corp.], 298 NY 437, 440 [1949]; see Fulginiti v Fulginiti, 127 AD3d 1382, 1384-1385, 4 N.Y.S.3d 780 [3d Dept 2015]), such response did not constitute assent. Indeed, the record is devoid of any indication that the wife’s counsel assented to the terms outlined in the initial email or in the subsequent draft settlement agreement. As such, the parties never reached the requisite meeting of the minds as to all material terms and a binding agreement was never formed (see Weksler v Weksler, 163 AD3d 432, 433, 81 N.Y.S.3d 27 [1st Dept 2018]; see also Matter of George W. & Dacie Clements Agric. Research Inst., Inc. v Green, 130 AD3d 1422, 1424, 13 N.Y.S.3d 710 [3d Dept 2015]).
Matter of Eckert, 2023 NY Slip Op 03270 (3d Dep’t 2023)
The Court then outlined the procedural requirements to be followed in order to create a judicially enforceable stipulation of settlement and the omissions that barred enforcement in this action:
We also remind the parties that, to be enforceable, stipulations of settlement require more than just an agreement among the parties. Once the parties to an active litigation reach an agreement, they must (1) place the material terms of such agreement on the record in open court, (2) reduce them to a court order which is then signed and entered or (3) contain them in a writing subscribed by the parties or their counsel (see CPLR 2104; Bonnette v Long Is. Coll. Hosp., 3 NY3d at 286; see e.g. Matter of Philadelphia Ins. Indem. Co. v Kendall, 197 AD3d 75, 81-82, 151 N.Y.S.3d 392 [1st Dept 2021]). Although the daughter argues that this Court should find an enforceable agreement because the parties cancelled certain depositions, this is not the type of detrimental reliance that excuses compliance with CPLR 2104 (see Palmo v Straub, 45 AD3d 1090, 1092, 845 N.Y.S.2d 549 [3d Dept 2007]; Starr v Rogers, 44 AD3d 646, 647, 843 N.Y.S.2d 371 [2d Dept 2007]; Marpe v Dolmetsch, 256 AD2d at 914; Bedrosian v McCollum, 209 AD2d 778, 779-780, 617 N.Y.S.2d 997 [3d Dept 1994]; compare Lowe v Steinman, 284 AD2d 506, 507-508, 728 N.Y.S.2d 56 [2d Dept 2001]; Conlon v Concord Pools, 170 AD2d 754, 754-755, 565 N.Y.S.2d 860 [3d Dept 1991]), and the parties are free to reschedule such depositions upon remittal, if they so choose. For these reasons, we reverse the order on appeal, deny the daughter’s motion and restore the proceedings and actions for further proceedings.
Matter of Eckert, 2023 NY Slip Op 03270 (3d Dep’t 2023)
Justice McShan wrote the two-Justice dissent, first discussing how a series of writings, in this case, emails can create a binding stipulation:
A set of subscribed writings between parties to an action that discusses the possibility of settlement may constitute a binding agreement, provided that the discussions set forth all material terms and contain a manifestation of the parties’ mutual assent to be bound (see Herz v Transamerica Life Ins. Co., 172 AD3d 1336, 1337-1338, 99 N.Y.S.3d 664 [2d Dept 2019]; Matter of George W. & Dacie Clements Agric. Research Inst., Inc. v Green, 130 AD3d 1422, 1423, 13 N.Y.S.3d 710 [3d Dept 2015]; Palmo v Straub, 45 AD3d 1090, 1092, 845 N.Y.S.2d 549 [3d Dept 2007]). Noting the applicability of contract principles to a written settlement agreement (see Herz v Transamerica Life Ins. Co., 172 AD3d at 1337-1338; Forcelli v Gelco Corp., 109 AD3d 244, 248, 972 N.Y.S.2d 570 [2d Dept 2013]), we must look beyond “either party’s subjective intent[, as] the determination must be based on the objective manifestations of the intent of the parties as gathered by their expressed words and deeds” (Brighton Inv., Ltd. v Har-Zvi, 88 AD3d 1220, 1222, 932 N.Y.S.2d 214 [3d Dept 2011] [internal quotation marks and citation omitted]; see Matter of Springs Aesthetic Plastic Surgery, P.C. [Ridha-Singh], 151 AD3d 1408, 1409, 58 N.Y.S.3d 204 [3d Dept 2017]; Coca-Cola Refreshments, USA, Inc. v Binghamton Giant Mkts., Inc., 127 AD3d 1319, 1323, 6 N.Y.S.3d 766 [3d Dept 2015]). To this end, “[a]ssent can be manifested by words or circumstances, but a mere determination of the mind unacted on can never be acceptance” (Diarassouba v Urban, 71 AD3d 51, 58, 892 N.Y.S.2d 410 [2d Dept 2009] [internal quotation marks and citation omitted], lv dismissed 15 NY3d 741 [2010]; see Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448-449, 45 N.Y.S.3d 864, 68 N.E.3d 683 [2016]).
Matter of Eckert, 2023 NY Slip Op 03270 (3d Dep’t 2023)
The dissent outlined how the email exchange reflected all material terms:
At the outset, it is our view that the primary contention of respondent (hereinafter the wife) that the email exchange did not contain all material terms is simply reflective of her buyer’s remorse incurred after the consequences of the agreement became clear. The initial email from counsel for petitioner (hereinafter the daughter) following the alternative dispute resolution session provided that a $515,000 payment would be made by certified check within 20 days of a signed discontinuance. That email further noted that the daughter could “be flexible on payment dates to minimize tax implications,” and that she would be “willing to work in good faith to ensure that tax treatment is minimized by timing.” In response, the wife’s counsel sent a subscribed email the following day, making no mention of any of the other terms beyond the timing of the payment, in which he specifically replied: “Leave the timing of payment open until we have more information.” Approximately three weeks after the daughter’s counsel sent over a draft settlement agreement, the wife’s counsel advised that they had engaged in significant research and discussions with tax professionals, and that “certain tax issues . . . ha[d] come up in connection with the potential settlement.” Specifically, the wife’s counsel noted that liquidation of the assets at issue — namely, the decedent’s retirement accounts — “would trigger an enormous tax regardless of what year it is done” (emphasis added), and, therefore, the wife could not settle on the agreed-upon terms.
Matter of Eckert, 2023 NY Slip Op 03270 (3d Dep’t 2023)
The dissent discussed, and rejected, the argument that the payment terms were material and found unpersuasive the claim that the “timing [of the payment] was material to the parties’ settlement agreement (see Rawald v Dormitory Auth. of the State of N.Y., 199 AD3d 477, 478, 156 N.Y.S.3d 201 [1st Dept 2021]; Matter of Philadelphia Ins. Indem. Co. v Kendall, 197 AD3d 75, 81, 151 N.Y.S.3d 392 [1st Dept 2021]; Forcelli v Gelco Corp., 109 AD3d at 248; Palmo v Straub, 45 AD3d at 1092; see also Guice v PPC Residential, LLC, 212 AD3d 577, 577, 182 N.Y.S.3d 94 [1st Dept 2023]).”
In turn, because we believe that the material terms were included within the initial email from the daughter’s counsel, we find it clear from the wife’s counsel’s response that she had assented to the settlement agreement. Our colleagues accurately note that silence cannot constitute acceptance of an offer absent a duty to speak (see Diarassouba v Urban, 71 AD3d at 57). However, in our view, the circumstances before us do not require that we divine the wife’s acceptance in the absence of any response. To the contrary, in this instance, we may look to the responsive email from the wife’s counsel that offered no objection to the terms set forth in the initial email from the daughter’s counsel, including the total settlement figure, and simply addressed the daughter’s willingness to work with the wife to minimize the tax consequences of the agreed-upon cash payment. It could therefore be reasonably inferred by the daughter’s counsel that the wife’s counsel’s response conveyed a manifestation of assent to be bound by the terms set forth in the initial email (see Forcelli v Gelco Corp., 109 AD3d at 248; Minelli Constr. Co., Inc. v Volmar Constr., Inc., 82 AD3d 720, 722, 917 N.Y.S.2d 687 [2d Dept 2011]; Glen Banks, New York Contract Law § 2:13 [28 West’s NY Prac Series, July 2022 update]; cf. Sannon-Stamm Assoc., Inc. v Keefe, Bruyette & Woods, Inc., 96 AD3d 630, 631, 947 N.Y.S.2d 466 [1st Dept 2012]). As we believe the parties’ email exchange constitutes a valid settlement, we would affirm (see Matter of Philadelphia Ins. Indem. Co. v Kendall, 197 AD3d at 78-79).
Matter of Eckert, 2023 NY Slip Op 03270 (3d Dep’t 2023)
Decision Date: June 15, 2023
Practical Practice Point
A judicially enforceable stipulation, whether of settlement or related to some other aspect of a litigation, is a beautiful thing. CPLR 2014 provides:
An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed 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.
Eckert involved an exchange of emails. In Forcelli v Gelco Corp., 109 AD3d 244 (2d Dept, July 24, 2013), cited in the dissent, the Second Department joined the First and Third Departments (the Fourth Department is in accord, see Ehlenfield v. Kingsbury, 206 A.D.3d 1671 (4th Dep’t 2022) in holding that when “an email message contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature, such an email message may be deemed a subscribed writing within the meaning of CPLR 2104 so as to constitute an enforceable agreement.”
Bonnette v Long Island College Hospital, 3 N.Y.3d 281, 785 N.Y.S.2d 738 (2004), cited by the majority, illustrates the danger of failing to comply with CPLR 2104. Bonnette was a medical malpractice action in which the parties reached an agreement to settle the action for $3,000,000, which was to include a structured settlement. No written stipulation of settlement pursuant to CPLR 2104 was executed. Settlement was delayed by plaintiff’s counsel’s efforts to reduce a Medicaid lien and to obtain an annuity plan, during which time the infant on whose behalf the action was commenced died, whereupon the hospital refused to honor the settlement agreement because a CPLR 2104 stipulation was lacking, the settlement agreement was not enforceable.
Plaintiff moved to enforce the settlement by motion in the existing action, and in opposition the hospital did not dispute that the understanding had been reached, nor did it dispute what the terms were to have been, arguing that it could not be bound by the terms since the understanding had not been reduced to writing. Supreme Court granted the plaintiff’s motion, and the Appellate Division reversed, holding that under the circumstances the hospital was within its rights to withhold its consent to the settlement.
The Court of Appeals affirmed. To be enforceable, CPLR 2104 requires that the settlement agreement conform to one of the methods set forth in the statute. While the correspondence between the plaintiff and the hospital demonstrated that an agreement had been reached, it did not set forth all of the material terms and was not enforceable. Neither the doctrines of substantial compliance with CPLR 2104 nor equitable estoppel were sufficient to take the case out of the usual rule. The Court noted that the rule regarding stipulations is necessary to prevent endless satellite litigation over whether settlements have been reached, and on what terms.
So, CPLR 2104 is a powerful tool, used properly. Use it properly.
First Department affirms denial of motion to transfer venue based upon the convenience of material witnesses, where both plaintiff and defendant submitted affidavits from material witnesses, averring they would be inconvenienced
In Barresi v Halls Boat, LLC, 2023 NY Slip Op 02964 (1st Dept. 2023) the First Department held that Justice Elizabeth Taylor providently exercised her discretion in denying defendant’s motion to change venue from Bronx to Warren County, where the accident occurred. Venue was proper in Bronx County based on plaintiff’s residence in that county pursuant to CPLR 503(b). Having properly placed venue in the first instance, “a discretionary change of venue based on the convenience of witnesses will be granted only after there has been a detailed evidentiary showing that the convenience of nonparty witnesses would be served by the granting of such relief (10 Two Trees Lane LLC v Mahoney, 192 AD3d 468, 469 (1st Dept. 2021).”
The burden is on the party seeking the change of venue, and both sides submitted affidavits from witnesses. While the First Department’s affirmance of the denial of the motion made clear both sets of affidavits were considered, it was also clear that defendant’s submissions in support of the motion were lacking:
Defendant failed to meet its burden of demonstrating that a change of venue for the convenience of material witnesses was warranted. Defendant submitted affidavits of three law enforcement officers employed by Warren County who were involved in the search of plaintiff’s decedent and the recovery of the snowmobile after the accident, and an Emergency Medical Technician employed by the Town of Lake George who rode in the ambulance with the decedent after the accident. The affidavits, which merely set forth brief and vague descriptions of the witnesses’ proposed testimony, were insufficient to show that the testimony would be material and relevant to the issue of defendant’s liability and damages (see Moghazeh v Valdes-Rodriguez, 151 AD2d 428, 429 [1st Dept 1989]). The witnesses’ failure to disclose their complete addresses, however, did not render defendant’s motion fatally flawed, since the affidavits reflect that they reside in Warren County (see Kochan v Target Corp., 161 AD3d 499, 500 [1st Dept 2018]).
Defendant also submitted affidavits of three employees who assisted in the search, observed conditions related to the accident, and are familiar with defendant’s maintenance and the condition of its dock and facilities. Although these witnesses could provide relevant testimony on material issues, the convenience of employee witnesses is “not a weighty factor” (see Martinez v Dutchess Landaq, Inc., 301 AD2d 424, 425-426 [1st Dept 2003] [internal quotation marks omitted]).
Barresi v Halls Boat, LLC, 2023 NY Slip Op 02964 (1st Dept. 2023).
The Court described the affidavits furnished by plaintiff in opposition to the motion and concluded that, balancing the competing submissions, retention of venue in Bronx County was proper:
Plaintiff, on the other hand, submitted affidavits of six individuals who accompanied plaintiff’s decedent on the trip, all of whom are firefighters employed in Bronx County, and who averred that they would be inconvenienced by having to travel to Warren County to testify. Their affidavits show they could provide relevant testimony as to the material issues of liability and damages. The foregoing weighs in favor of maintaining the action in Bronx County (see Neos v Crabby Joe’s, 241 AD2d 337 [1st Dept 1997]).
Barresi v Halls Boat, LLC, 2023 NY Slip Op 02964 (1st Dept. 2023).
Decision Date: June 6, 2023
Practical Practice Point
The venue in which an action is tried is often a significant factor in the ultimate resolution of a case. Most litigators can reel off a list of “plaintiff-friendly” and “defendant-friendly” venues, and their lists will likely be identical. And the impact of venue is often apparent from the earliest negotiations, at mediation, and, finally, at trial, where venue can influence not only the amount of damages awarded, but the outcome of the trial.
In Barresi, venue was based on CPLR 503(b):
(b) Executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver. An executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver shall be deemed a resident of the county of his appointment as well as the county in which he actually resides.
It is important to remember that if plaintiff selects an improper venue, and defendant does not timely and properly object, CPLR 509 provides that the case will be tried in that venue notwithstanding the fact that there was no statutory basis for placement in the county selected:
Notwithstanding any provision of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order upon motion, or by consent as provided in subdivision (b) of rule 511.
CPLR 510 sets forth the bases for a motion to change venue:
The court, upon motion, may change the place of trial of an action where:
1. the county designated for that purpose is not a proper county; or
2. there is reason to believe that an impartial trial cannot be had in the proper county; or
3. the convenience of material witnesses and the ends of justice will be promoted by the change.
A decision cited in Barresi, Moghazeh v Valdes-Rodriguez, 151 AD2d 428 (1st Dept. 1989), which ironically also involved a motion to change venue to Warren County, is a useful guide to what not to do when moving pursuant to CPLR 510(3):
In support of their application for a change of venue to Warren County, on the basis of convenience to material witnesses, defendants state that “[police] officers witnessed the condition of the roadway where the accident occurred, the condition of the plaintiff and the vehicle involved in the accident”. Defendants neither elaborate as to what the conditions alluded to were nor otherwise indicate how they may be material or relevant to the lawsuit. Similarly faulty is defendants’ reliance upon the anticipated testimony of two civilian witnesses to the effect that, when they arrived, plaintiff was not wearing a seat belt, and was able to ambulate without assistance. This testimony offers no assistance with respect to whether the seat belt was in use at the time of the accident, and certainly cannot be accorded greater weight on the issue of plaintiff’s physical condition than the medical testimony. Moreover, the testimony of these witnesses would, in any event, relate solely to damages, rather than liability. In light of all of these circumstances, the convenience of these two witnesses does not constitute an adequate basis for a change of venue. (See, Wecht v Glen Distribs. Co., 112 AD2d 891; Green v Shortts, supra.) Nor does the unspecified testimony of unidentified members of an ambulance squad and an automobile towing service, also offered in support of the motion, provide a ground for this relief. ( Wecht v Glen Distribs. Co., supra, at 893.)
Finally, we note that while the order appealed from granted defendants’ motion pursuant to CPLR 510 (3), there is also no basis for a change of venue pursuant to CPLR 510 (1). Under CPLR 503 (a), a party may have two residences for venue purposes and, upon review of this record, we conclude that plaintiff adequately established residence in Bronx County. The choice of venue having been proper, and there being no other grounds for a change thereof, it was error for the court to have granted defendants’ motion. ( Torriero v Austin Truck Rental, 143 AD2d 595.)
Summary judgment denied where defendant in a legal malpractice action failed to submit an expert affirmation/affidavit in support of its motion
N. Flatts LLC v Belkin Burden Goldman, LLP, _AD3d_, 2023 NY Slip Op 02954 (1st Dept 2023), a short three paragraph legal malpractice decision touches on a number of important CPLR issues.
Plaintiff’s complaint alleged the defendant attorney negligently represented a building owner seeking to convert a building to residential use. Defendant moved for summary judgment “contend[ing] that it had timely filed an article 7-B compliance form on plaintiff’s behalf in reliance on the certification of plaintiff’s architect, and that the filing of that form prohibited it from seeking a time extension to achieve article 7-B compliance.”
The First Department affirmed the motion court’s denial of the motion:
Defendant did not satisfy its prima facie burden of establishing its entitlement to summary judgment dismissing the complaint as a matter of law, as defendant failed to submit an expert opinion demonstrating that it did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community (see Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010]).
***
[Defendant] has not submitted an expert affidavit establishing that its reliance on the architect’s opinion was reasonable under the circumstances, or explaining how defendant was prohibited from withdrawing the filed form and seeking a time extension to comply with article 7-B. Moreover, absent an expert affidavit, defendant failed to establish prima facie that its alleged negligence in its the handling of the article 7-B compliance form was not a proximate cause of plaintiff’s losses (see id.).
N. Flatts LLC v Belkin Burden Goldman, LLP, _AD3d_, 2023 NY Slip Op 02954 (1st Dept 2023)
Defendant’s summary judgment motion was made at the outset of the action, and the First Department held that the motion court “properly denied the prediscovery motion as premature, given plaintiff’s showing that facts essential to justify opposition to defendant’s motion may lie within defendant’s exclusive knowledge or control:”
In response to defendant’s claim that it was not aware of potential issues with the architect’s certification of compliance until the August 2021 conference, after the May 2021 deadline to apply for an extension had expired, plaintiff pointed out that its tenants had disputed the architect’s compliance opinion as early as January 2021. Discovery is necessary to shed light on when defendant knew of a potential problem with the filed article 7-B compliance form, and whether defendant could have timely withdrawn that form and sought a timely extension to achieve compliance.
N. Flatts LLC v Belkin Burden Goldman, LLP, _AD3d_, 2023 NY Slip Op 02954 (1st Dept 2023)
Two other issues were addressed. First, defendant was not entitled to summary judgment on its counterclaims for unpaid legal fees, “because plaintiff’s malpractice cause of action is “intertwined” with those claims [for fees].” Second, defendant asserted two counterclaims for sanctions, the first under 22 NYCRR 130-1.1 and the second under CPLR 8303-a. Neither counterclaim was viable because “New York does not recognize independent causes of action for sanctions under [either provision],” and the appellate court further held that “[i]n any event, the record before us does not support a finding that plaintiff’s action was frivolous, brought in bad faith, or undertaken to harass or maliciously injure defendant.
Decision Date: June 1, 2023
Practical Practice Point
While there are advantages to moving for summary judgment early in the life of an action, the earlier the motion is made the more likely the opposing party will oppose the motion by invoking CPLR 3212(f):
(f) Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just.
In North Flatts, the reason the plaintiff could not set forth certain facts in opposition is that those facts “may lie within defendant’s exclusive knowledge or control,” thus requiring denial of the motion. Normally, the defendant would be able to renew its motion for summary judgment upon the completion of disclosure, though when, as here, the motion was denied for the failure to furnish an expert affirmation/affidavit, that prima facie failure by the movant should bar a subsequent motion seeking the same relief on the same basis under the rule barring successive summary judgment motions. Aurora Loan Servs., LLC v Yogev, 194 AD3d 996 (2021).
The decision cited by the First Department for denying the motion due to the lack of an expert to support the motion, Suppiah v Kalish, 76 AD3d 829 (1st Dept 2010), was also legal malpractice action. The First Department explained:
We reverse because defendant failed to satisfy his prima facie burden of establishing entitlement to judgment as a matter of law. The issues in this case are not part of an ordinary person’s daily experience, and to prevail at trial, plaintiff will be required to establish by expert testimony that defendant failed to perform in a professionally competent manner. As this is a motion for summary judgment, the burden rests on the moving party–here, defendant–to establish through expert opinion that he did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community. Also, defendant was required, on this motion, to establish through an expert’s affidavit that even if he did commit malpractice, his actions were not the proximate cause of plaintiff’s loss. By failing to submit the affidavit of an expert, defendant never shifted the burden to plaintiff.
The decision cited by the First Department on the intertwining of the claims for legal malpractice and counterclaims for legal fees, Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453, 454 (1st Dept 2013), set forth the applicable rule:
If a defendant client’s legal malpractice claim is intertwined with a plaintiff law firm’s claim for legal fees, the plaintiff will not be entitled to summary judgment on its account stated claim. However, if the malpractice claim is not so intertwined, courts are not precluded from granting the plaintiff summary judgment.
And it is worth remembering that 22 NYCRR 130-1.1 and CPLR 8303-a provide independent, though partially overlapping, bases for sanctions for frivolous conduct.
The continuing violation doctrine extends the limitations where acts comprise “a single continuing pattern of unlawful conduct . . . immediately preceding the filing of the complaint;” plaintiff’s hostile work environment and sexual discrimination claims timely
In Crawford v Am. Broadcasting Co., _AD3d_, 2023 NY Slip Op 02611 (1st Dept. 2023) the First Department analyzed the defendant’s conduct as alleged in the complaint in applying the continuing violation doctrine:
The complaint alleges that, following Corn’s sexual assault on plaintiff in February 2015, he continued to stare at her, lurked by her desk, made inappropriate, flirtatious comments toward her, disclosed intimate details about his marriage, and frequently pressured her to go out drinking, within the limitations period. It cannot be said that, as a matter of law, these acts were not part of a single continuing pattern of unlawful conduct supporting her hostile work environment and discrimination claims (citation omitted).
Crawford v Am. Broadcasting Co., _AD3d_, 2023 NY Slip Op 02611 (1st Dept. 2023)
The First Department held plaintiff had pled facts supporting gender based discrimination under both the New York City Human Rights Law and the amended New York State Human Rights Law:
[T]he allegations that Corn sexually assaulted plaintiff in 2015 and engaged in a pattern of gender-based misconduct in the workplace, demonstrate that she was subjected to inferior terms, conditions, or privileges of employment on the basis of her gender (citation omitted).
Crawford v Am. Broadcasting Co., _AD3d_, 2023 NY Slip Op 02611 (1st Dept. 2023)
However, not all of plaintiff’s claims survived:
Plaintiff’s quid pro quo harassment claims were correctly dismissed, as there is no allegation that Corn denied her a promotion during the limitations period, and she failed to adequately plead a pattern of unlawful conduct relating to her promotion (citation omitted). Plaintiff’s vague allegation that she “attempted” to speak to defendant “over the next few years” is insufficient to support her claim (citation omitted; [applying continuing violation doctrine to failure to promote claim, where plaintiff repeatedly applied for and was denied promotions]).
Crawford v Am. Broadcasting Co., _AD3d_, 2023 NY Slip Op 02611 (1st Dept. 2023)
Finally, the First Department denied the defendant’s motion to strike certain allegations in the amended complaint:
Allegations regarding defendant’s sexual assault of another ABC employee should not have been granted. At this stage in the litigation, defendants failed to demonstrate that allegations concerning alleged prior bad acts should be precluded, as any evidence regarding those allegations may be relevant to plaintiff’s hostile work environment claim (citation omitted). Since hostile work environment claims are to be decided based on the totality of the circumstances (citation omitted), evidence relating to Corn’s prior misconduct and behavior towards other women in the workplace is relevant in this case (citation omitted).
Crawford v Am. Broadcasting Co., _AD3d_, 2023 NY Slip Op 02611 (1st Dept. 2023)
Decision Date: May 16, 2023
Practical Practice Point
The allegations in the complaint must support the continuing violations doctrine. Where they do not, and are merely discrete events, the doctrine will not apply:
As for plaintiff’s claims against her individual supervisors, all claims based on conduct occurring more than three years before her termination are barred by the applicable three-year statute of limitations (citations omitted). The continuing violation doctrine does not apply because the complaint does not allege facts comprising “a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint” (citation omitted), but rather discrete events, involving different actors, and occurring months to years apart (citation omitted).
Campbell v NY City Dept. of Educ., 200 AD3d 488, 489 (1st Dept 2021)
We are more familiar with prior bad acts in criminal cases, but the doctrine has application in civil cases:
At this stage of the litigation, where the note of issue has not been filed and party depositions have not yet begun, Dinneen failed to demonstrate that evidence concerning his alleged prior bad acts should be precluded, as any evidence regarding those allegations may be relevant to establish motive, intent, or a common scheme or plan (citation omitted). Further, the court properly denied Dinneen’s motion to strike portions of the complaint, as he has made no showing that the purportedly scandalous or prejudicial allegations are irrelevant (citation omitted).
Robinson v Dinneen, 203 AD3d 555, 556 (1st Dept. 2022), citing People v Molineux , 168 NY 264, 293, 61 N.E. 286, 10 N.Y. Ann. Cas. 256, 16 N.Y. Cr. 120 (1901).
Second Department in decision by P.J Dillon offers a veritable treatise on the history of, and rules currently governing the exchange of surveillance videos
In Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023) the Second Department addressed both the merits, and the motion court’s exercise of discretion, with regard to plaintiff’s application to preclude the admission at trial of surveillance videos taken of the plaintiff by defendant’s private investigator. The surveillance videos in question fell into two categories: a single video taken before the deposition of the plaintiff was conducted, and seven others taken after the plaintiff’s deposition had been [completed.] All were exchanged prior to the filing of the note of issue.
The decision began by comparing the state of video surveillance in 1993, the year CPLR 3101(i) was enacted to deal with the exchange of surveillance videos, and today, where the ubiquity of surveillance and cellphone cameras coupled with the ever increasing use of private investigators, has rendered the surveillance landscape unrecognizable from the vantage point of 1993, and concluded “[w]e might expect that surveillance video will play an increasing role in the assessment of claims, discovery, and trials,” and then framed the issue before the court:
In that vein, we address here the difference between pre-deposition and post-deposition disclosure requirements for surveillance materials under CPLR 3101(i), and the factors that are to be considered by courts under CPLR 3126 in determining whether to preclude such materials disclosed beyond conference order deadlines.
Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)
The decision sets forth in great, and necessary, detail the timeline of events leading up to plaintiff’s application to preclude all of the surveillance videos, and to fully appreciate the holding you may want to review those facts. Plaintiff moved for summary judgment pre-note of issue and defendant, following service of the motion and also pre-note, served plaintiff with all eight surveillance videos, together with the reports of both the eight successful, and several unsuccessful surveillance reports required under CPLR 3101(i), and the used the surveillance videos in its opposition to the summary judgment motion.
This prompted plaintiff to serve a second motion, which it wrongly denominated a cross-motion. In opposition, defendant lodged a procedural objection to the short service of the “cross-motion,” conceded that the first, pre-deposition surveillance video should have been served before the plaintiff’s deposition, “but urged that post-deposition surveillance video was timely disclosed because CPLR 3101(i) sets no disclosure deadline, discovery between the parties was still ongoing, and no note of issue had yet been filed in the action.”
On the merits, plaintiff “argued that the defendant’s opposition to the preclusion motion was not supported by an affidavit from the videographer to authenticate the films, rendering them inadmissible in opposition to the summary judgment motion.”
The motion court denied plaintiff’s summary judgment motion, and:
[D]isregarded the technical defect of the plaintiff seeking relief by means of a cross-motion, as the defendant was heard on the merits of the application and there was no prejudice to any party. The court further held that the plaintiff failed to establish that the alleged late disclosure of the surveillance material was willful or contumacious or that the plaintiff was prejudiced in any way, and consequently, the preclusion motion was denied in its entirety.
Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)
The Second Department modified the motion court’s order only to the extent of precluding the pre-deposition video, which defendant had conceded was untimely, and otherwise affirmed, and concluded that the motion court’s exercise of discretion was not improvident. The appellate court later noted that this might led to defendant’s waiting to conduct any surveillance until after the plaintiff’s deposition. The Second Department highlighted the potential evidentiary impact of the type of surveillance videos at issue:
This Court recognizes the true impetus behind the parties’ dispute over the defendant’s potential use of surveillance video materials. From this record, the plaintiff seeks to recover damages for personal injuries allegedly sustained through the fault of the defendant, qualifying under at least, inter alia, the significant limitation and permanent consequential limitation prongs of the definition of serious injury under New York’s threshold injury law (citation omitted). The videotapes at issue here, if timely disclosed, admissible, and probative, could affect threshold injury determinations made at the summary judgment stage of litigation or at trial. The same issues may affect similarly situated cases in our state.
Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)
After discussing the balancing of factors inherent in the motion court’s exercise of discretion, the court embarked on an encyclopedic tour of the law governing disclosure of surveillance videos, a section of interest not just to CPLR Geeks but to anyone interested in the evolution of judicial and legislative thinking on a topic of procedure.
The opinion synthesized the controlling authority:
CPLR 3101(i) contains no language prohibiting the acquisition of surveillance video of a party after that party has testified at a deposition. Nor does any decisional authority. Indeed, CPLR 3101(h) recognizes that disclosure is a continuing obligation, requiring parties to amend or supplement discovery responses when later information is obtained that renders an earlier response inaccurate or incomplete when made or when the prior response, though correct and complete when made, is materially no longer so. And parties are not required to be more forthcoming with surveillance videos than they would with any ordinary discovery material under CPLR 3101(a) (citation omitted).
That said, CPLR 3101(i) provides no fixed deadline for the disclosure of post-deposition surveillance video footage (citations omitted). Rather, trial courts may regulate issues of timing through their preliminary and compliance conference orders (citation omitted), subject to their authority and discretion to manage their calendars and determine whether to preclude evidence under CPLR 3126(2) for any noncompliance with court-imposed deadlines (citation omitted).
Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)
And then the Second Department concluded, in cautionary language meant to be taken seriously:
This opinion should not be read to suggest that post-deposition surveillance material may never be precluded. Only, that circumstances warranting preclusion are not present here.
Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)
Decision Date: May 10, 2023
Practical Practice Point
The Pizzo Court’s decision is so comprehensive that a longer than usual practice point is in order. The starting point in analyzing the disclosure of surveillance videos is the controlling statute, CPLR 3101(i):
(i) In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law.
CPLR 3101(i)
As recited by the Pizzo Court, Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383 (2003) and Zegarelli v Hughes, 3 NY3d 64 (2004) are required reading, but beyond that Pizzo v Lustig is itseld the roadmap to guide pre-trial and trial practice in this area.
And what about the ominous sounding ending:
This opinion should not be read to suggest that post-deposition surveillance material may never be precluded. Only, that circumstances warranting preclusion are not present here.
It is critical to recall that all of the exchanges in Pizzo took place prior to the filing of the note of issue, when discovery was still open and parties were not limited by the stringent post-note of issue standard for obtaining additional disclosure. So Pizzo doesn’t touch on post-note exchange of surveillance videos obtained pre-note, nor surveillance video obtained post-note. It is interesting to contemplate defendant’s strategy on exchanging the surveillance video if plaintiff had not moved for summary judgment and defendant elected to use the videos in opposing the motion. Keep in mind the usual admonitions against “trial by ambush,” favoring “deciding cases on the merits,” and avoiding “prejudice,” all of which should inform your analysis of how to proceed in, at least as far as Pizzo is concerned, uncharted waters. And, finally, remember the oft-repeated warning by Professor David Segal: when embarking on a course that will necessarily make new law, “let it be in someone else’s case” first.
To Err Is Human, To Establish “Law Office Failure” Divine
In Giordano v Giordano, _AD3d_, 2023 NY Slip Op 02381 (1st Dept. 2023) the First Department reversed the trial court’s decision to vacate an order entered on default granting defendant’s motion and instead held that the plaintiff demonstrated a reasonable excuse for failing to timely file a cross-motion and opposition to defendant’s motion:
Plaintiff’s counsel stated that he mistakenly believed that the papers could be filed at any time on the return date of December 15, 2021, and that the e-filing at 10:58 p.m. on that date was timely, despite the fact that the papers were, in fact, due to be filed two days before the return date.
Giordano v Giordano, _AD3d_, 2023 NY Slip Op 02381 (1st Dept. 2023)
The First Department determined plaintiff established facts sufficient to constitute “law office failure” which the court, in its discretion, may excuse. At the same time, the Court determined that “there was no evidence that the default was deliberate or part of a pattern of dilatory conduct by plaintiff.”
The Court acknowledged the prejudice to defendant, by “fail[ing] to provide defendants with time to reply to his cross motion:”
[T]his error should have been remedied by granting defendants a brief adjournment, in view of the strong public policy of resolving cases on the merits, rather than by granting a default judgment.
Giordano v Giordano, _AD3d_, 2023 NY Slip Op 02381 (1st Dept. 2023)
Finally, the Court held that plaintiff had “made a prima facie showing of a meritorious claim,” generally required to obtain relief and noted that the defendant did not have “clean hands.”
Decision Date: May 4, 2023
Practical Practice Point
Any time a court has discretion to rule for, or against your client, there is always cause for concern. The court can always exercise its discretion to deny your requested relief, in which case you are put to the task of proving an abuse or improvident exercise of discretion. So, better to understand the elements of the standard to be met, and make certain to satisfy each element.
Law office failure is codified in CPLR 2005 “Excusable delay or default:”
Upon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.
CPLR 2005
Of interest to CPLR Geeks, CPLR 2005 was enacted in 1983 to legislatively overrule the decision of the Court of Appeals in Eaton v Equit. Life Assur. Socy., 56 NY2d 900 1982) which expressly rejected law office failure as a basis for excusing a default.
Disqualification of attorney under advocate witness rule based upon attendance at defendant’s medical examination reversed
In Domingo v 541 Operating Corp., _AD3d_, 2023 NY Slip Op 02175 (1st Dept. 2023) defense counsel sought to disqualify plaintiff’s counsel under the witness advocate rule based upon counsel’s attendance at defendant’s medical examination where the motion court determined she interfered with the examination.
Reversing the disqualification, the First Department based its decision on its determination that “[d]efendants failed to establish that plaintiff’s counsel’s testimony was necessary and would not be cumulative.” “[D]isqualification is required “only where the testimony by the attorney is considered necessary and prejudicial to plaintiffs’ interests.”
Acknowledging the right of plaintiff’s counsel to attend the examination, “in part to deter the examining doctor ‘from inquiring about matters beyond the scope of the particular action,’” the Court concluded:
[D]efendants have not established that counsel’s testimony would be necessary to their defense and not cumulative of the testimony that could be provided by the examining physician and plaintiff herself (citations omitted). Because there is no basis for defendants to call counsel as a witness in these circumstances, rule 3.7(b)(1) of the Rules of Professional Conduct is not implicated, and counsel’s firm should not have been disqualified. Contrary to defendants’ contention, rule 3.4(d)(2), prohibiting an attorney from asserting personal knowledge of facts when appearing before a tribunal, does not apply here.
Domingo v 541 Operating Corp., _AD3d_, 2023 NY Slip Op 02175 (1st Dept. 2023)
Similarly unavailing was the argument that counsel’s interference warranted disqualification:
The examining physician completed a “meaningful examination” of plaintiff at the IME, reflected by the IME report in which he was able to opine with a reasonable degree of medical certainty as to the genesis of plaintiff’s symptoms, and defendants have not established that they were prejudiced by the contents of the report based on counsel’s alleged intrusions. To the extent that further information is required to prepare a defense, the remedy is not disqualification of opposing counsel but rather to permit defendants to seek further discovery to obtain that information (citation omitted).
Domingo v 541 Operating Corp., _AD3d_, 2023 NY Slip Op 02175 (1st Dept. 2023)
Decision Date: April 27, 2023
Practical Practice Point
As a general rule, disqualification of counsel during litigation is often a formidable undertaking, and one that implicates significant legal policy implications as the Court of Appeals explained in S & S Hotel Ventures LP v 777 S. H. Corp., 69 NY2d 437, 443 (1987):
Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party’s right to representation by the attorney of its choice (citations omitted). The right to counsel of choice is not absolute and may be overridden where necessary — for example, to protect a compelling public interest — but it is a valued right and any restrictions must be carefully scrutinized (citation omitted). Moreover, we cannot ignore that where the Code of Professional Responsibility is invoked not in a disciplinary proceeding to punish a lawyer’s own transgression, but in the context of an ongoing lawsuit, disqualification of a plaintiff’s law firm can stall and derail the proceedings, redounding to the strategic advantage of one party over another (citations omitted). Already more than three years have elapsed since the present action was instituted.
S & S Hotel Ventures LP v 777 S. H. Corp., 69 NY2d 437, 443 (1987)
In resolving the case before it, the S&S Court concluded:
Linked to these declarations by plaintiff is the fact that neither court below found Sassower’s testimony necessary to plaintiff’s case. Special Term found that Sassower had knowledge of the circumstances surrounding the deed of trust, but questioned the materiality of such knowledge to this action. The Appellate Division found that Sassower was intimately involved in the transactions in issue, including the flow of information to defendant relating to its consent. But whether a witness “ought” to testify is not alone determined by the fact that he has relevant knowledge or was involved in the transaction at issue. Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary (citation omitted). Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence (citations omitted).
The burden to establish disqualification and the standard for review was succinctly stated in HoganWillig, PLLC v Swormville Fire Co., Inc., 210 AD3d 1369, 1372-1373 (4th Dept 2022):
The party seeking disqualification of a law firm or an attorney bears the “burden of making ‘a clear showing that disqualification is warranted’ ” (citations omitted), and a trial court’s decision to disqualify a law firm or an attorney shall be reviewed on appeal for abuse of discretion (citation omitted).
New York had CPLR 302(a)(2) long arm jurisdiction over a single act of abuse occurring in New York in action brought under the Child Victim Act by Connecticut plaintiff against Connecticut defendant
WCVAWCK-Doe v Boys & Girls Club of Greenwich, Inc., _AD3d_, 2023 NY Slip Op 02026 (2nd Dep’t 2023)
The WCVAWCK-Doe decision opens with an explanation of specific jurisdiction lifted from the SCOTUS decision in Goodyear:
[S]pecific jurisdiction “depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.”
2023)WCVAWCK-Doe v Boys & Girls Club of Greenwich, Inc., _AD3d_, 2023 NY Slip Op 02026 (2nd Dep’t 2023)
It is axiomatic that the party asserting jurisdiction has the burden of proof to establish a basis for jurisdiction, but in opposing a motion to dismiss need only demonstrate prima facie that the defendant was subject to jurisdiction bearing in mind that the “[t]he facts alleged in the complaint and affidavits in opposition to such a motion to dismiss are deemed true and construed in the light most favorable to the plaintiff, and all doubts are to be resolved in favor of the plaintiff.”
The Second Department tied the relevant facts and applicable law together in a cogent paragraph which warrants no editorializing:
Here, viewing the plaintiff’s allegations in the light most favorable to him, the plaintiff demonstrated, prima facie, that the Club, a Connecticut not-for-profit corporation, committed a tortious act within the State of New York in accordance with the meaning of CPLR 302(a)(2), the subdivision of the long-arm statute at issue on this appeal. The plaintiff alleged that the Club organized a field trip for its members to the amusement park in New York, and while at the amusement park, the Club failed to properly supervise its members, resulting in the plaintiff being sexually assaulted by another member. Thus, the plaintiff has alleged that the Club committed the tortious acts of negligent supervision and negligent infliction of emotional distress while in New York. Contrary to the Club’s contention, notwithstanding that a majority of the abuse alleged by the plaintiff occurred in Connecticut, personal jurisdiction can be established under CPLR 302(a)(2), with regard to the one incident alleged to have occurred in New York.
WCVAWCK-Doe v Boys & Girls Club of Greenwich, Inc., _AD3d_, 2023 NY Slip Op 02026 (2nd Dep’t 2023)
Decision Date: April 19, 2023
Practical Practice Point
As the final sentence indicates, plaintiff’s ability to recover in the action will be limited to the single claim of abuse which New York has jurisdiction, and plaintiff’s invocation of New York’s jurisdiction was an act of necessity as the non-New York claims were time barred in Connecticut. An interesting trial issue will be the extent to which the non-New York acts of abuse will be admissible in the New York action.
Remember that effective May 24, 2022 New York has extended the statute of limitations in CPLR 214-J. Certain Sexual Offense Actions:
Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against such person who was eighteen years of age or older, or incest as defined in section 255.26 or 255.27 of the penal law committed against such person who was eighteen years of age or older, which is barred as of the effective date of this section because the applicable period of limitation has expired, and/or the plaintiff previously failed to file a notice of claim or a notice of intention to file a claim, is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section. In any such claim or action, dismissal of a previous action, ordered before the effective date of this section, on grounds that such previous action was time barred, and/or for failure of a party to file a notice of claim or a notice of intention to file a claim, shall not be grounds for dismissal of a revival action pursuant to this section.
CPLR 214-J
Recent cases on the Child Victim Act have clarified a number of issues including that exact date on which abuse occurred not required in Child Victim Act notice of claim (Wagner v State of NY, _AD3d_, 2023 NY Slip Op 01546 (2d Dept. 2023)), the effect of a release from a prior claim on a new action under the CVA (M.M. & J.M v. Church of Our Lady of the Annunciation, 203 AD3d 1277 (3d Dept. 2022)), whether the CVA violates due process (PB-36 Doe v Niagara Falls City Sch. Dist., _AD3d_, 182 NYS3d 850, 2023 NY Slip Op 00598 (4th Dept. 2023)), and whether the CVA applies to acts occurring outside New York (S.H. v. Diocese of Brooklyn, 205 AD3d 180 (2d Dept 2022)).
Where no affidavit by witness with knowledge was submitted in support of the motion for summary judgment, the affirmation by attorney was of no probative value, and the complaint was unverified, the motion must be denied
Tribbs v 326-338 E 100th LLC, _AD3d_, 2023 NY Slip Op 01950 (1st Dept. 2023) is an example of an instructive case, not for what the attorney did, but for what the attorney did not do.
The First Department’s decision is short and to the point:
CPLR 3212(b) states, “A motion for summary judgment shall be supported by affidavit…The affidavit shall be by a person having knowledge of the facts.” Plaintiff failed to submit an affidavit. While he submitted his attorney’s affirmation, “[s]uch an affirmation…is without evidentiary value” (citation omitted). Although plaintiff submitted his complaint, it is not verified, so it cannot be used in lieu of an affidavit (citations omitted).
Tribbs v 326-338 E 100th LLC, _AD3d_, 2023 NY Slip Op 01950 (1st Dept. 2023)
So, three swings and a miss.
Decision Date: April 13, 2023
Practical Practice Point
The requirement in CPLR 3212(b) that an affidavit “be by a person having knowledge of the facts” means just what it says. Which is not to say, however, that prima facie entitlement to summary judgment cannot be established without an affidavit, but it is the rare case indeed.
A verified complaint which contains sufficient sworn facts to establish prima facie entitlement may suffice. See CPLR 105(u): Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required; Levenson v Briggs, 95 AD 94, 95 (2d Dept 1904) (“This complaint is verified, and has all of the force of an affidavit in establishing the facts alleged.”).
An attorney’s affirmation which marshals proof in admissible form and which recites the facts contained in that admissible proof may also suffice:
The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide “evidentiary proof in admissible form”, e.g., documents, transcripts. Such an affidavit or affirmation could also be accepted with respect to admissions of a party made in the attorney’s presence. In the present instance, however, the attorney was not present at the comptroller’s hearing, nor was anyone else on behalf of his client. As to that hearing the attorney was a total stranger.
Zuckerman v New York, 49 NY2d 557, 563 (1980)
But why take the chance. Where there is a witness, or witnesses with knowledge of the relevant material facts, obtaining duly executed affidavits, annexing relevant exhibits and laying the necessary foundation to render those exhibits admissible (see Evidence Case of the Week, below), is the prudent and safest course.
Spoliation sanction reduced from striking answer to striking counterclaims
In Harry Winston, Inc. v Eclipse Jewelry, Corp. the First Department reviewed the sanction imposed for defendant’s spoliation of his cell phone records. The motion court struck defendant’s answer for failing to implement a litigation hold and preserve the cell phone records, which the appellate court modified:
[T]he drastic remedy of striking the entire answer and all the counterclaims was not warranted . . . [h]ere, plaintiff failed to establish that the unavailability of the lost and destroyed evidence prejudiced it and left it unable to prosecute its action. Indeed, plaintiff argued only that its ability to defend the counterclaims was compromised. Therefore, the appropriate sanction under the circumstances should have been directed solely to the counterclaims . . . [p]laintiff established that defendant’s spoliation compromised its ability to defend portions of two counterclaims, and they therefore are stricken.
Harry Winston, Inc. v Eclipse Jewelry, Corp. 2023 NY Slip Op 01840 (1st Dept. 2023)
The First Department also held that “because [defendant’s] selective preservation and concealment of a text from his old phone “evinces a higher degree of culpability than mere negligence” . . . defendant is precluded from introducing the text in evidence”
Decision Date: April 06, 2023
Practical Practice Point
When seeking a spoliation sanction it is important to ascertain when the duty to preserve evidence arose, establish the steps taken (or not taken) to preserve the evidence and that the loss or destruction was done with a culpable state of mind, and then demonstrate that the spoliated evidence was relevant to one or more claims or defenses. The two leading cases to consult in framing a spoliation motion are Pegasus Aviation I, Inc. v Varig Logistics S.A., 26 NY3d 543, 551 (2015) and VOOM HD Holdings LLC v EchoStar Satellite LLC, 93 AD3d 33, 45, 939 N.Y.S.2d 321 (1st Dept 2012).