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Subpoena Can Not Be Used for Discovery Purposes​

The Second Department noted that a subpoena duces tecum may not be used for discovery purposes:

“[A] subpoena duces tecum may not be used for purposes of discovery or to ascertain the existence of evidence”…. Here, the subpoena duces tecum served by the defendants improperly sought production of certain materials that the defendants had failed to seek during the discovery process, or that had previously been the subject of an unsuccessful motion to compel disclosure. Under these circumstances, the Supreme Court properly granted the separate motions of the plaintiff and the third-party defendant to quash the subpoena duces tecum … . Wahab v Agris & Brenner, LLC, 2013 NY Slip Op 03667, 2nd Dept, 5-22-13

 

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Expert’s Affidavit Should Have Been Considered in Summary Judgment Motion Even though Expert Had Not Been Disclosed​

In a slip and fall case, the defendant moved for summary judgment.  Because the plaintiff’s expert had not been previously disclosed, Supreme Court refused to consider the expert’s affidavit.  In reversing, the Second Department wrote:

 “[A] party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment” …. Under the circumstances of this case, it was an improvident exercise of discretion to refuse to consider the affidavit of the plaintiff’s expert submitted in opposition to the respondents’ motion … . Salcedo v Weng Qu Ju, 2013 NY Slip Op 03656, 2nd Dept, 5-22-13

 

Consolidation and Joint Trial Explained​

The Second Department explained the criteria for a motion to consolidate and explained when consolidation, as opposed to joining two actions for trial, is not appropriate:

“A motion to consolidate two or more actions rests within the sound discretion of the trial court” (… see CPLR 602). “Where common questions of law or fact exist, consolidation is warranted unless the opposing party demonstrates prejudice to a substantial right” … . * * *

…[A]ctions should be joined for trial, rather than consolidated, [when] certain parties would appear as both the plaintiff and the defendant if the actions were consolidated, and the actions involve certain different defendants … .  Matter of Joseph J, 2013 NY Slip Pp. 03676, 2nd Dept, 5-22-13

 

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Unsigned Depositions Deemed Admissible

In a Labor Law action stemming from a fall through an open manhole, the plaintiffs submitted transcripts of one the plaintiff’s deposition testimony as part of plaintiffs’ motion for summary judgment on liability. Supreme Court denied plaintiffs’ motion on the ground that the certified deposition transcripts submitted by them were not signed.  In determining that Supreme Court should not have denied plaintiffs’ motion on that ground, the Second Department wrote:

By submitting the transcript of [plaintiff’s] deposition, the plaintiffs adopted it as accurate …. Further, the … defendants … did not challenge the accuracy of any of the transcripts submitted by the plaintiffs …. Consequently, those deposition transcripts were admissible ….  Carey v Five Bros, Inc, 2013 NY Slip Op 03626, 2nd Dept. 5-22-13

 

 

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Failure to Demonstrate When Plaintiff Should Have First Become Aware of Fraudulent Conveyance Precluded Dismissal on Statute of Limitations Grounds​

The Second Department determined that causes of action alleging fraudulent conveyances pursuant to Debtor & Creditor Law 276 should not have been dismissed on statute of limitations grounds because the defendants failed to establish when plaintiff should have first become aware of the alleged fraud:

“A cause of action based upon actual fraud under Debtor and Creditor Law § 276 must be brought within six years of the date that the fraud or conveyance occurs, or within two years of the date the fraud should have been discovered, whichever is longer” …. Here, it is undisputed that the verified complaint did not allege the occurrence of any fraudulent conveyances within six years prior to the commencement of the action. However, since it is unclear when the plaintiff should have first been aware of the alleged fraud, the defendants failed to establish that the causes of action alleging actual fraud under Debtor and Creditor Law § 276 should be dismissed as time-barred ….  Felshman v Yamali, 2013 NY Slip Op 03632, 2nd Dept, 5-22-13

 

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Terms of Appellate Court’s Remittitur Must Be Strictly Followed

In a breach of contract action that had been remitted to Supreme Court, the Second Department determined Supreme Court failed adhere to the terms of the remittitur by failing to calculate interest and express the amount due and owing in accordance with the remittitur. In sending the case back to Supreme Court, the Second Department wrote:

“A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court” …. “An order or judgment entered by the lower court on a remittitur must conform strictly to the remittitur'” …. Berry v Williams, 2013 NY Slip Op 03625, 2nd Dept, 5-22-13

 

No Proof of Service of Notice of Entry of Default Judgment; One Year Deadline Never Triggered​

The First Department noted that the one-year deadline for a motion to vacate a default judgment (CPLR 5015) was never triggered because the record included no proof that the notice of entry of the default judgment was served.  Gottlieb v Northriver Trading Co, LLC, 2013 NY Slip Op 03618, 1st Dept, 5-21-13

 

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UCC Four-Year Statute of Limitations Applied to Breach of Warranty Cause of Action​

The Second Department affirmed Supreme Court’s determination that a guarantee which stated “if any defects in manufacturing, materials or workmanship occurred within 10 years the product would be repaired, replaced or purchase price refunded” was not a warranty which extended to future performance within the meaning of UCC 2-725[2]. The four-year UCC statute of limitations therefore applied to the warranty cause of action.  In addition, the Second Department affirmed the dismissal of the “fraudulent concealment” cause of action.  The Court’s discussion of the law concerning those two issues follows:

A cause of action alleging breach of warranty is governed by a four-year statute of limitations (see UCC 2-725[1]…). Generally, a breach of warranty action accrues “when tender of delivery is made” (UCC 2-725[2];…). As an exception to this general rule, the UCC provides that “where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance,” then “the cause of action accrues when the breach is or should have been discovered” (UCC 2-725[2];…). “A warranty of future performance is one that guarantees that the product will work for a specified period of time”… . However, “[w]arranties to repair or replace [a] product in the event that it fails to perform, without any promise of performance, do not constitute warranties of future performance” … . * * *

In pleading a cause of action to recover damages for fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b];…) A cause of action sounding in fraud must allege that the defendant knowingly misrepresented or concealed a material fact for the purpose of inducing another party to rely upon it, and that the other party justifiably relied upon such misrepresentation or concealment to his or her own detriment…. “A cause of action to recover damages for fraudulent concealment requires, in addition to allegations of scienter, reliance, and damages, an allegation that the defendant had a duty to disclose material information and that it failed to do so”… Schwatka v Super Millwork, Inc, 2013 NY Slip Op 03470, 2nd Dept, 5-15-13

 

 

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Action for Fraud Cannot Be Based on Same Facts as Breach of Contract; Fraud Must Be Pled in Detail

After noting that a cause of action for fraud does not lie when it is based on the same allegations stated in a breach of contract cause of action, the Second Department explained the pleading requirements in a fraud action, including the need for “detail,” as follows:

A cause of action to recover damages for fraud requires allegations of (1) a false representation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages…. Moreover, CPLR 3016(b) requires that the circumstances underlying a cause of action based on fraud be stated “in detail” (CPLR 3016[b];…). Here, the allegations of fraud against the remaining defendants either were bare and conclusory or do not rise to the level of fraud. Consequently, the Supreme Court properly granted those branches of the separate motions of the remaining defendants which were pursuant to CPLR 3211(a)(7) to dismiss the third cause of action insofar as asserted against each of them. Genovese v State Farm Mut Auto Ins Co, 2013 NY Slip Op 03453, 2nd Dept, 5-15-13

 

 

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Bank Account in Name “Ann … or Thomas…” Could Be Turned Over to Pay Debt Owed by Thomas 

In finding that the funds held in a bank account in the name of “Ann Sledjeski or Thomas Sledjeski” should have been turned over to pay Thomas Sledjeski’s debt, the Second Department wrote:

The Supreme Court should have granted the unopposed petition pursuant to CPLR 5225(b) to direct Hudson City Savings Bank to turn over the funds of an account it held in the name of “Ann Sledjeski or Thomas Sledjeski,” to partially satisfy a judgment entered in favor of the petitioner and against Thomas C. Sledjeski. ” [T]he opening of a joint bank account creates a rebuttable presumption that each named tenant is possessed of the whole of the account so as to make the account vulnerable to levy of a money judgment by the judgment creditor of one of the joint tenants'” (…see Banking Law § 675[b]). Therefore, the petitioner was not required to establish that the judgment debtor was the sole contributor of funds to the account. Moreover, since none of the respondents appeared or answered the proceeding, they failed to rebut the presumption …  Matter of JRP Old Riverhead, Ltd v Hudson City Sav Bank, 2013 NY Slip Op 03484, 2nd Dept, 5-15-13

 

 

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