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PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT).

The First Department, reversing Supreme Court, noted that the parties, through stipulations, had consented to procedures which deviated from the CPLR. Therefore the summary judgment motions, although untimely under the CPLR, should have been deemed timely:

Prior court orders and stipulations between the parties show that the parties, with the court’s consent, charted a procedural course that deviated from the path established by the CPLR and allowed for defendants’ filing of this round of summary judgment motions more than 120 days after the filing of the note of issue … . Thus, the motions were timely, and we remand the matter to the motion court for a full consideration of their merits … . Reeps v BMW of N. Am., LLC, 2018 NY Slip Op 02907, First Dept 4-26-18

​CIVIL PROCEDURE (PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT))/STIPULATIONS (CIVIL PROCEDURE, PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT))

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A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP).

The Court of Appeals, affirming the Appellate Division, determined that the clause of a contract indicating construction of the contract was governed by New York law did not incorporate a specific statutory requirement, here a requirement of the Lien Law:

Plaintiff’s complaint does not identify which, if any, provision or provisions of the [CM agreement] were purportedly breached. Unlike the Development and Lease Agreements — to which plaintiff is not a party — the CM Agreement contains no express provision requiring compliance with the Lien Law. Plaintiff nevertheless maintains that section 5 of the Lien Law should be “read into” the CM Agreement because the contract is governed by New York law. Specifically, plaintiff points to section 17.3 of the CM Agreement, which provides that “[t]he construction, validity and performance of [the CM Agreement] shall be exclusively governed by the laws of the State of New York, excluding any provisions or principles thereof which would require the application of the laws of a different jurisdiction.” However, this is a typical choice-of-law provision that we do not read as imposing a contractual obligation here. The mere fact that an agreement, and disputes arising thereunder, are governed by the law of a particular jurisdiction does not transform all statutory requirements that may otherwise be imposed under that body of law into contractual obligations, and we decline to interpret the CM Agreement as “impliedly stating something which [the parties] have neglected to specifically include” … . Skanska USA Bldg. Inc. v Atlantic Yards B2 Owner, LLC, 2018 NY Slip Op 02828, CtApp 4-26-18

​CONTRACT LAW (A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))/CIVIL PROCEDURE (CONTRACT LAW, CHOICE OF LAW, A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))/CONSTRUCTION CONTRACTS (A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))/LIEN LAW (CONSTRUCTION CONTRACTS, ERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))

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AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion to defend an action pursuant to CPLR 317 should not have been granted. The affidavit alleging defendant moved its office and failed to notify the secretary of state of the move (and therefore did not receive the summons) was deemed insufficient:

CPLR 317 provides that a person served with a summons, other than by personal delivery to him or her, who does not appear, may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or she did not personally receive notice of the summons in time to defend and has a potentially meritorious defense … . “The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317” … . Here, the defendant Grand Slam Ventures, LLC (hereinafter Grand Slam), failed to establish that it did not personally receive notice of the summons in time to defend the action. The affidavit of Grand Slam’s managing member averring that Grand Slam moved its office to an unspecified address in 2010, five years before the action was commenced, and failed to update its address on file with the Secretary of State, was not sufficiently detailed or substantiated to establish lack of actual notice of the action … . Moran v Grand Slam Ventures, LLC, 2018 NY Slip Op 02776, Second Dept 4-25-18

​CIVIL PROCEDURE (SERVICE OF PROCESS, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/SERVICE OF PROCESS (CPLR 317, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/CPLR 317 (SERVICE OF PROCESS, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/EVIDENCE (SERVICE OF PROCESS, CPLR 317, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))

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CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, under the facts, the contractual provision creating a one year statute of limitations for a breach of contract action was not fair and should not have been enforced. It was not the duration of the limitations period that was deemed unfair, rather it was the defendant’s lack of control over the actions by the plaintiff which could be deemed to have breached the contract:

There is nothing inherently unreasonable about the one-year period of limitation, to which the parties here freely agreed … . “The problem with the limitation period in this case is not its duration, but its accrual date” … . It is neither fair nor reasonable to require that an action be commenced within one year from the date of the plaintiff’s substantial completion of its work on the project, while imposing a condition precedent to the action that was not within the plaintiff’s control and which was not met within the limitations period. “A limitation period’ that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim” … . The limitation period in the subcontract conflicts with the conditions precedent to payment becoming due to the plaintiff, which, under the circumstances of this case, acted to nullify any claim the plaintiff might have for breach of the subcontract. Therefore, interpreting the subcontract against the defendant, which drafted the agreement … , we find that the one-year limitation period is unenforceable under the circumstances here … . D&S Restoration, Inc. v Wenger Constr. Co., Inc., 2018 NY Slip Op 02768, Second Dept 4-25-18

​CIVIL PROCEDURE (CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT))/STATUTE OF LIMITATIONS (CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT))/CONTRACT LAW (STATUTE OF LIMITATIONS, CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT))

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FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the failure to file a consent to change attorney form was not a reason to deny the motion brought by new counsel, and the motion to vacate plaintiff’s default should have been granted because the process server was not able to produce his log book:

CPLR 321(b)(1) provides that an attorney of record may be changed by filing a consent to change attorney signed by the retiring attorney and the party. Notice must be given to adverse parties. In this case, it appears that at the time the defendant’s motion for leave to renew and reargue was made, no consent to change attorney had been filed. A technical failure to comply with CPLR 321(b), however, does not render the acts of the new attorney a nullity … . In this case, the plaintiff claims no prejudice, and the consent to change attorneys was filed while the motion was still pending … . Thus, contrary to the plaintiff’s contention, the belated compliance with CPLR 321(b) was not a basis to deny the defendant’s motion … .

At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence … . The plaintiff failed to meet that burden. Where a process server has no independent recollection of events, a process server’s logbook may be admitted in evidence as a business record … . Here, however, the logbook was not produced in court or introduced in evidence. Thus, there was no evidence—other than the process server’s description of a business record not before the court, which the process server claimed he was unable to locate—to support the claim that service occurred at 7:05 p.m., when the person who allegedly received the papers was present to receive them. Sperry Assoc. Fed. Credit Union v John, 2018 NY Slip Op 02823, Second Dept 4-25-18

​CIVIL PROCEDURE (CONSENT TO CHANGE ATTORNEY, FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/ATTORNEYS  (CONSENT TO CHANGE ATTORNEY, FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/CONSENT TO CHANGE ATTORNEY (FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/EVIDENCE (VACATE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/SERVICE OF PROCESS (VACATE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/LOG BOOK (SERVICE OF PROCESS, VACATE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))

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QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT).

The Second Department determined there were questions of fact about whether the disassembly of a boiler was maintenance (not covered by Labor Law 240(1)) or repair (which is covered) and whether a safety device was required to stabilize a portion of the boiler which fell and injured plaintiff. The court also determined that the striking of the contractor’s (Sitework’s) answer for failure to comply with discovery demands resulted in an admission to the allegations in the complaint, including the allegation of grave injury (taking the injury out from under the Workers’ Compensation Law):

… [T]he plaintiff testified at his deposition that, at the time of the accident, Siteworks employees were disassembling the subject boiler section by section to fix a leak. However, the head custodian at the school where the plaintiff’s injury occurred testified at his deposition that the boiler was disassembled every summer for routine cleaning and refurbishing. The head custodian was also not aware of any problem with the boiler in need of repair during the summer of 2014, which is when the plaintiff was injured. As the record does not otherwise clarify the degree to which boiler sections are “components that require replacement in the normal course of wear and tear” … , the Supreme Court properly determined that triable issues of fact exist with respect to whether the plaintiff’s activity was covered under Labor Law § 240(1). …

Here, since Siteworks’ third-party answer has been stricken as a result of a default, it has admitted all traversable allegations in the complaint, including the basic allegations of liability and that the plaintiff sustained a grave injury. Garbett v Wappingers Cent. Sch. Dist., 2018 NY Slip Op 02600, Second Dept 4-18-18

​LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/CIVIL PROCEDURE (DEFAULT, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/WORKERS’ COMPENSATION LAW (GRAVE INJURY, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/GRAVE INJURY (WORKERS’ COMPENSATION LAW, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))

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BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to change the caption in this foreclosure action to substitute and new bank plaintiff (FNMA) and eliminate one of the defendants who had died should not have been granted. The motion papers did not demonstrate with admissible evidence that the note had been assigned to the new plaintiff and did not take any of the required steps to remove the deceased defendant (George Bredehorn) from the action:

Although the plaintiff submitted evidence that the mortgage was assigned to FNMA, there was no evidence in admissible form of an assignment of the note or a transfer of possession of the note to FNMA. The only evidence offered by the plaintiff that the note had in fact been transferred to FNMA was the statement in the plaintiff’s attorney’s affirmation that “based on telephonic conversations,” the attorney had been advised that FNMA was the holder of the note as of February 1, 2014. This statement is inadmissible hearsay … .

Further, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was to omit George Bredehorn from the caption. The plaintiff did not establish that George Bredehorn died intestate, move to substitute a representative for George Bredehorn’s estate as a defendant, move to discontinue the action insofar as asserted against him, or represent that it would not seek a deficiency judgment against his estate. In light of the plaintiff’s failure to take any one of those actions, the action against George Bredehorn was not extinguished … . Citimortgage, Inc. v Bredehorn, 2018 NY Slip Op 02595, Second Dept 4-18-18

​FORECLOSURE (BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/TRUSTS AND ESTATES (FORECLOSURE, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/EVIDENCE (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/HEARSAY (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/CPLR 1015  (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))

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BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that although plaintiff did not demonstrate spoliation of evidence warranting striking the answer, the plaintiff was entitled to an order of preclusion regarding any requested documents which defendants claimed did not exist. Plaintiff was shot by an intruder in his apartment building and had demanded any documents concerning the doors, locks and security measures in force at the building:

… [T]he Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to impose a sanction upon the defendants for spoliation of evidence. The plaintiff failed to sustain his burden of establishing that spoliation occurred as there was no evidence submitted that the requested documents ever actually existed … . The plaintiff also did not establish that the absence of any such documents deprived him of his ability to prove his claim … . …

… [U]nder the circumstances of this case, the Supreme Court should have exercised its discretion to grant the plaintiff the alternative relief of an order of preclusion. An order of preclusion may be entered where the offending party’s lack of cooperation with disclosure was willful, deliberate, and contumacious … . “The willful and contumacious character of a party’s conduct may be inferred from the party’s repeated failure to comply with court-ordered discovery, and the absence of any reasonable excuse for those failures, or a failure to comply with court-ordered discovery over an extended period of time” … . Here, the defendants failed to produce relevant documents that were directed to be produced by the preliminary conference order. That failure led to two motions by the plaintiff to compel compliance, only to have the defendants assert that the building had been sold shortly after the preliminary conference order had been issued and that all documents had been transferred to the new owner. The new owner then denied having any of the requested documents. The defendants offer no excuse for their conduct. The defendants’ dilatory discovery conduct cannot be condoned, and it would be manifestly unfair to the plaintiff for the defendants to attempt to offer any of the subject documents at trial, should the documents be located. Watson v 518 Pa. Hous. Dev. Fund Corp., 2018 NY Slip Op 02666, Second Dept 4-18-18

​CIVIL PROCEDURE (NEGLIGENCE, EVIDENCE, DISCOVERY, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/DISCOVERY (NEGLIGENCE, EVIDENCE, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/SPOLIATION (BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/PRECLUSION (NEGLIGENCE, EVIDENCE, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/NEGLIGENCE (EVIDENCE, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/EVIDENCE (NEGLIGENCE, DISCOVERY, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))

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PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS ALLEGING NEW INJURIES WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT).

The Second Department determined the defendants’ motion to strike the purported supplemental bills of particulars was properly granted. The supplemental bills of particulars alleged new injuries in this rear-end collision case. The supplemental bills of particulars were actually amended bills of particulars. Plaintiff failed to demonstrate the defendants were not prejudiced by the new allegations and failed to explain the delay:

Contrary to the plaintiff’s contention, the documents he denominated the “second supplemental bill of particulars” and “third supplemental bill of particulars” were, in reality, amended bills of particulars, as they sought to add new injuries (see CPLR 3403[b]… ). While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise, here, the plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries … . Kirk v Nahon, 2018 NY Slip Op 02604, Second Dept 4-18-18

​CIVIL PROCEDURE (BILLS OF PARTICULARS, PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/BILLS OF PARTICULARS ( PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/SUPPLEMENTAL BILLS OF PARTICULARS (PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/AMENDED BILLS OF PARTICULARS (PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/CPLR 3403 (BILLS OF PARTICULARS, PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/NEGLIGENCE (BILLS OF PARTICULARS, PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS ALLEGING NEW INJURIES WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))

A COURT HAS THE DISCRETION TO GRANT A MOTION TO RENEW THAT IS NOT BASED ON NEWLY DISCOVERED EVIDENCE (FIRST DEPT).

The First Department noted that, although a motion to renew should be based upon newly discovered evidence, a court has the discretion to grant a motion to renew based on evidence which was available:

Although it is true that a motion to renew should generally be based upon newly-discovered facts, this rule is not inflexible, and the court has discretion to grant renewal in the interest of justice even upon facts that were known to the movant at the time the original motion was made … . Here, we decline to interfere with the court’s discretionary decision to grant renewal. Further, in view of the strong policy in favor of resolving disputes on the merits, and in the absence of prejudice to defendants, we conclude that the motion court, upon renewal, providently exercised its discretion in vacating the judgment. Kaszar v Cho, 2018 NY Slip Op 02555, First Dept 4-12-18

​CIVIL PROCEDURE (MOTION TO RENEW, A COURT HAS THE DISCRETION TO GRANT A MOTION TO RENEW THAT IS NOT BASED ON NEWLY DISCOVERED EVIDENCE (FIRST DEPT))/RENEW, MOTION TO (A COURT HAS THE DISCRETION TO GRANT A MOTION TO RENEW THAT IS NOT BASED ON NEWLY DISCOVERED EVIDENCE (FIRST DEPT))

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