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Discovery Demands Overbroad

In affirming Supreme Court’s determination that petitioner’s discovery demands in a property tax assessment matter were overbroad, the Second Department wrote:

…[T]he document demands, even limited to those concerning tax years 2008/2009, 2010/2011, and 2011/2012, were of an overbroad and burdensome nature. Although CPLR 3101(a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action,” unlimited disclosure is not required, and supervision of disclosure is generally left to the Supreme Court’s broad discretion… . While documents related to the actions of the Board of Assessment Review for the Town of Babylon are relevant to this hybrid proceeding and action alleging statutory and constitutional violations, the Supreme Court properly determined that the “sweeping demands” of the notice of discovery and inspection were overbroad and burdensome …. “Where discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it'” … .  In the Matter of Greenfield v Board of Assessment Review…, 2013 NY Slip Op 03480, 2nd Dept, 5-15-13

 

 

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Lateness Not a Barrier to Motion to Amend Pleadings/Addition of Wrongful Death Cause of Action Allowed; No Prejudice to Defendant

The Second Department upheld Supreme Court’s grant of a motion to amend a complaint to add a cause of action for wrongful death “long after the action ha[d] been certified for trial…”.  The Second Department explained:

Although the plaintiff delayed in making the motion, ” [m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side'”…. Contrary to the defendants’ contentions, they did not demonstrate that they would be significantly prejudiced by the amendment. In light of the medical records of the plaintiff’s decedent, which documented multiple hospital admissions and her declining medical condition following the subject accident, along with the decedent’s deposition testimony regarding the aggravation of pre-existing medical conditions, the defendants cannot, under the circumstances of this case, claim to have been surprised by the amendment … . Moreover, the plaintiff offered a reasonable excuse for the delay, and to avoid any possible prejudice to the defendants, the Supreme Court granted them time to obtain further discovery … . Henry v MTA, 2013 NY Slip Op 03457, 2nd Dept, 5-15-13

 

 

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Criteria for Motion to Amend Pleadings/Motion for Additional Depositions

In this Labor Law action, the Second Department explained the factors to be considered in a motion to amend the pleadings, and the factors to be considered in a motion for additional depositions:

Applications for leave to amend pleadings should be freely granted except when the delay in seeking leave to amend would directly cause undue prejudice or surprise to the opposing party, or when the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b];…). The sufficiency or underlying merit of the proposed amendment is to be examined no further ….  * * *

The moving party that is seeking additional depositions has the burden of demonstrating “(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case” …. Whether the defendant had the authority to supervise the means and methods of the work is material and relevant to the issue of liability in this case …. Gomez v State of New York, 2013 NY Slip Op 03455, 2nd Dept, 5-15-13

 

 

Motion to Vacate Default Based On Lack of Jurisdiction Need Not Demonstrate Reasonable Excuse Meritorious Defense

In finding Supreme Court should have held a hearing on whether defendant [Goldberger] was properly served with a complaint in a foreclosure action (in which the defendant did not appear), the Court noted that the fact defendant had unsuccessfully filed for bankruptcy after the judgment of foreclosure did not prevent him from contesting service of the foreclosure complaint.  The Court explained that where the motion to vacate a default judgment is based on a lack of personal jurisdiction, neither a reasonable excuse nor a meritorious defense need be demonstrated:

The Supreme Court erred in determining the motion without first conducting a hearing. Although the process server’s affidavit constituted prima facie evidence of proper service, Goldberger’s sworn claim that he did not reside at the subject premises, along with his submission of documentary evidence supporting that claim, was sufficient to rebut the prima facie showing, and to necessitate a hearing… . Contrary to the plaintiff’s contention, Goldberger is not judicially estopped from seeking vacatur of the judgment as a result of his filing of a bankruptcy petition. …Goldberger did not receive a favorable result in the bankruptcy proceeding by taking a position contrary to one he is taking in this action ….  …[A] party who moves to vacate a judgment entered on default on the ground of lack of personal jurisdiction is not required to demonstrate a reasonable excuse for the default or a potentially meritorious defense  … . Dime Sav Bank of Williamsburg v 146 Ross Realty, LLC, 2013 NY Slip Op 03451, 2nd Dept, 5-15-13

 

 

Objection to Verification of Answer Too Late 

The Second Department determined plaintiff waited too long before objecting to an insufficient verification in the answer:

A party must “give[ ] notice with due diligence” that he or she intends to treat a pleading as a nullity pursuant to CPLR 3022 on the ground that the pleading was served with an insufficient verification (CPLR 3022;…). Here, the plaintiff …waived any claim that the verification accompanying the answer of the defendant …was defective by waiting approximately eight months after the answer was filed to object to it (see CPLR 3022; …).   Cherubin Antiques, Inc v Matiash, 2013 NY Slip Op 03449, 2nd Dept, 5-15-13

 

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Pre-Deposition Motion to Dismiss in Rear-End Collision Case Not Premature

In reversing the denial of summary judgment to the plaintiff in a rear-end collision case, the Second Department determined the pre-deposition motion for summary judgment should not have been dismissed as premature:

The Supreme Court erred in concluding that the plaintiffs’ motion was premature. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212[f]; … .The defendant’s contention that the plaintiffs’ motion was premature because the plaintiffs had not yet been deposed at the time the plaintiffs’ motion was filed did not establish what information the defendant hoped to discover at the plaintiffs’ depositions that would relieve him of liability in this case. “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” … .  Cajas-Romero v Ward, 2013 NY Slip Op 03446, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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Assumption of Duty to Maintain Sidewalk; No Expert Notice Needed for Treating Physician

In reversing a judgment after a jury trial in a slip and fall case, the First Department discussed several issues that came up in the trial, including the denial of a missing witness charge with respect to one of the defense doctors, a translation problem raised by the translator (which may have given the jury the misimpression plaintiff was confused about an important issue), the assumption by the defendant Department of Education (DOE) of a duty to make the sidewalk outside a school (where plaintiff fell) safe, and the trial court’s ruling that one of plaintiff’s treating physicians could not testify because no “expert witness” notice was provided.  In addressing the school’s assumption of a duty with respect to the condition of the sidewalk and the exclusion of plaintiff’s treating physician, the First Department wrote:

The DOE argues on appeal that the action should have been dismissed as against it because it did not own the sidewalk where plaintiff fell. New York City Charter § 521(a) provides that “title to all property … acquired for school or educational purpose … shall be vested in the city, but under the care and control of the board of education for the purposes of public education, recreation and other public uses.” Education Law § 2554(4) affirmatively charges the DOE with responsibility for “the care, custody, control and safekeeping of all school property or other property of the city used for educational, social or recreational work.” ……[W]here there was evidence that the DOE affirmatively undertook the duty to maintain the sidewalk, the court was well within its discretion in submitting the question of the DOE’s negligence to the jury ….

CPLR 3101(d)(1) provides that, upon request, parties must identify those expected to be called as experts and “disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify … and a summary of the grounds for each expert’s opinion.” However, the failure to serve a CPLR 3101(d) notice with regard to a treating physician, such as Dr. Geller, is not grounds for preclusion of the physician’s expert testimony as to causation where there has been disclosure of the physician’s records and reports, pursuant to CPLR 3121 and 22 NYCRR 202.17 … .  Hamer v City of New York, 2013 NY slip Op 03431, 1st Dept, 5-14-13

 

 

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In-Court Stipulation Enforceable Even Though Party Not Represented by Counsel​ 

The Third Department upheld an in-court stipulation concerning a mortgage foreclosure action that was entered without counsel:

Open court stipulations of settlement are highly favored, binding on  the parties and  strictly enforced, and generally will not be  cast aside absent a showing  of “fraud, collusion, mistake or accident” … .The fact that a party was not represented by counsel when entering into a  stipulation, while certainly relevant, is not sufficient  in  itself to  invalidate  a  stipulation,  particularly where the party was advised to retain counsel and chose not to … Liquori v Liquori, 515502, 3rd Dept, 5-9-13

 

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Absence of Privity Precluded Application of Collateral Estoppel Doctrine 

The Third Department, in reversing Supreme Court, determined the absence of privity precluded the application of the doctrine of collateral estoppel.  Northrop owned a gas station which was a designated spill site (gasoline). The Department of Environmental Conservation spent about $125,000 cleaning it up. Northrop sought payment for the clean-up from its insurance carrier (the defendant here). In a prior declaratory judgment proceeding Supreme Court determined the policy did not cover petroleum contamination. Then the state, the plaintiff here, started an action against the defendant insurance company under Navigation Law 190 seeking reimbursement of the clean-up expenses.  Supreme Court dismissed the complaint as barred by the doctrine of collateral estoppel (the prior declaratory judgment finding the insurance policy did not cover the clean-up expense).  In reversing, finding collateral estoppel should not have been invoked because Northrop and the state were not in privity, the Third Department wrote:

Plaintiff is the entity that has undertaken the cleanup and now seeks reimbursement for monies expended. Thus, plaintiff has a right of indemnification against Northport to recoup these costs …, establishing an indemnitor-indemnitee relationship. Plaintiff’s right of indemnification,  however, is independent of Northport’s contractual right to have its insurance carrier, defendant, cover these costs under the terms of the liability insurance  policy. Moreover, Navigation Law § 190 authorizes plaintiff to commence a direct action against defendant, and this right is independent of plaintiff’s right of indemnification against Northport. Given that plaintiff’s rights are not conditioned upon and do not derive from Northport’s, the existence of an indemnitor-indemnitee relationship between Northport and plaintiff does not establish privity between these parties.  State of New York v Zurich American Insurance Company, 514916, 3rd Dept, 5-9-13

 

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Statute of Frauds Precluded Real Property-Related Action; Equitable Part Performance Doctrine Not Applicable

The Second Department determined the statute of frauds barred the real-property-related action and, since the action was brought “at law,” the equitable “part performance” doctrine could not be applied:

Here, the County established, prima facie, that there is no extant writing subscribed by the County or its agent referencing an alleged oral agreement involving real property, as described by the plaintiff (see General Obligations Law § 5-703[3];…). In opposition, the plaintiff failed to raise a triable issue of fact. “Part performance by the party seeking to enforce [a] contract [for the sale of real property] may be sufficient in some circumstances to overcome the statute of frauds, but only in an action for specific performance” (…see General Obligations Law § 5-703[4];…). Since, here, the action is pleaded as one at law, and seeks only money damages, without any specific prayer for equitable relief, the plaintiff cannot rely on the doctrine of part performance to defeat the statute of frauds defense …. Accordingly, the Supreme Court should have granted the County’s motion for summary judgment dismissing the complaint, based on the statute of frauds. Zito v County of Suffolk, 2013 NY Slip Op 03324, 2nd Dept, 5-8-13

 

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