new york bridge the gap session a cplr update 2016 bridge the gap 4... · new york county...

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New York Bridge the Gap Session A

CPLR Update 2016

January 11, 2016; 5:30 PM – 9:00 PM I. Please rate each speaker in this session on a scale of 1 - 4

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David Paul Horowitz

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NEW YORK BRIDGE THE

GAP SESSION A: CPLR UPDATE 2016 Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for January 11,2016

Faculty: David Paul Horowitz, Esq

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 4 Transitional and Non-Transitional credit hours: 2 Professional Practice/Law Practice Management; 2 Ethics.

This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 4 hours of total CLE credits. Of these, 2 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification

New York Bridge the Gap Session A: CPLR Update 2016 January 11, 2016; 5:30 PM to 9:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

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course materials and receive MCLE credit. The time will be verified by the Program Assistant.

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the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

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v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

New York Bridge the Gap Session A CPLR Update 2016

Monday, January 11, 2016 5:30 PM to 9:00 PM

Faculty: David Paul Horowitz, Esq.

AGENDA

5:00 PM – 5:30 PM Registration 5:30 PM – 5:40 PM Introductions and Announcements 5:40 PM – 9:00 PM Presentation and Discussion . ***There will be a 10 minute break during the program

DAVID PAUL HOROWITZ ([email protected]) is a member of Geringer, McNamara & Horowitz in New York City. He has represented parties in personal injury, professional negligence, and commercial cases for over twenty-six years. In addition to his litigation practice, he acts as a private arbitrator, mediator and discovery referee. He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the most recent supplement to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School and will lecture on that topic, on behalf of the New York State Board of Bar Examiners, to candidates for the July 2016 bar exam, serves as an expert witness and is a frequent lecturer and writer on civil practice, evidence, ethics, and alternative dispute resolution issues. He serves on the Office of Court Administration’s Civil Practice Advisory Committee, is active in a number of bar associations, and served as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee. He received a B.A. from Lehman College, City University of New York and his law degree from Fordham University School of Law.

mailto:[email protected]

N.Y.C.L.A. 2016 C.P.L.R. Update

Copyright © 2016 David Paul Horowitz, All Rights Reserved

New York County Lawyers Association

2016 C.P.L.R. Update January 11, 2016

by David Paul Horowitz

Geringer, McNamara & Horowitz, LLP

5 Hanover Square – 3rd Floor New York, N.Y. 10004

Telephone: 212-682-7050 Facsimile: 212-867-5987

[email protected] © 2016 David Paul Horowitz, All Rights Reserved


Copyright © 2016 David Paul Horowitz, All Rights Reserved 2

“Hell, there are no rules here – we’re trying to accomplish something.” Thomas A. Edison



2016 C.P.L.R. Update

I. C.P.L.R. Amendments

a. 2015 Amendments

i. Amendment to C.P.L.R. 3212(b), Effective December 11, 2015

LAWS OF NEW YORK, CHAPTER 529

AN ACT to amend the civil practice law and rules, in relation to the use in motions of expert affidavits in summary judgment Became a law December 11, 2015, with the approval of the Governor. Passed by a majority vote, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Subdivision (b) of rule 3212 of the civil practice law and rules, as amended by charter 651 of the laws of 1973, is amended to read as follows: (b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

§ 2. This act shall take effect immediately and shall apply to all pending cases for which a summary judgment motion is made on or after the date on which it shall have become law and all cases filed on or after such effective date.



Memo In Support This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice. This measure would amend section 3212(b) to the CPLR to effect a very narrow, but much needed, change in the procedural law concerning the admissibility of expert affidavits in civil summary judgment motions. It would, in effect, legislatively overrule a line of decisions, starting with Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2d Dep’t 2008), and continuing, inter alia, with Garcia v. New York, 98 A.D.3d 857, 951 N.Y.S.2d 2 (1st Dep’t 2012), Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2d Dep’t 2012), and, most recently, DeSimone v. New York, 2014 NY Slip Op 06667 (1st Dep’t 2014). These First and Second Department cases have permitted trial judges, as an exercise of discretion, to decline to consider expert affidavits submitted in support of, or in opposition to, summary judgment motions where the proponent of the affidavit did not serve a CPLR 3101(d)(1)(i) exchange prior to the filing of the note of issue. Current Law One statute in New York addresses the issue of expert timing, CPLR 3101(d)(1)(i), which provides:

(d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall 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, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph. CPLR 3101(d)(1)(i) (Emphasis added).



CPLR 3101(d)(1)(i) makes no mention of the filing of the note of issue, and does not link or limit the exchange of experts to a period of time at or prior to the filing of the note of issue, or at or prior to the completion of fact discovery, or anything else. The only reference point stated for the exchange of experts refers to “an insufficient period of time before the commencement of trial . . .” Id.

In Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2d Dep’t 2008), the Second Department affirmed as proper exercise of discretion trial court’s decision in declining to consider affidavits proffered by defendant’s purported experts, since defendant failed to identify experts in pretrial disclosure and served affidavits after filing note of issue and certificate of readiness attesting to completion of discovery. Thereafter, in Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2d Dep’t 2012)the Second Department appeared to back away from its prior holding in Singletree, holding in Rivers that while post-note of issue expert exchange is but one fact for the court to consider, it nonetheless remains a factor.

In the First Department, in Garcia v. New York, 98 A.D.3d 857, 951 N.Y.S.2d 2 (1st Dep’t 2012), without citing Singletree or its progeny (Garcia was decided before Rivers), held that “[t]he expert's affidavit should not have been considered in light of plaintiff's failure to identify the expert during pretrial discovery as required by defendants' demand (citations omitted).”

Garcia was cited as the sole authority in a recent 2014 First Department decision, DeSimone v. New York, 2014 NY Slip Op 06667 (1st Dep’t 2014), where that court held:

The court providently exercised its discretion in denying plaintiff's cross motion to submit a disclosure of his expert professional engineer, since it was first submitted in opposition to defendants' motions for summary judgment dismissing the complaint, and subsequent to the filing of the note of issue and certificate of readiness (citation omitted). Both Departments have issued decisions with contrary holdings. See, e.g.:

Ramsen A. v. New York City Hous. Auth., 112 A.D.3d 439, 976 N.Y.S.2d 73 (1st Dep’t 2013):

CPLR 3101(d)(1)(i) does not require a party to retain an expert at any particular time (citation omitted). "[E]ven where one party requests trial expert disclosure during discovery pursuant to CPLR 3101(d)(1)(i), a recipient party who does not respond to the request until after the filing of the note of issue and certificate of readiness will not automatically be subject to preclusion of its expert's trial testimony" (citation omitted). Buchanan v. Mack Trucks, Inc. 2014 NY Slip Op 318 (2d Dep’t 2014) (citing

Rivers): "[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" (citations



omitted).

Rowan v. Cross Country Ski & Skate, 42 A.D.3d 563, 840 N.Y.S.2d 414 (2d Dep’t 2007):

Contrary to the plaintiff's contention, the court properly permitted the defendants' expert to testify. "CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proferring expert testimony merely because of noncompliance with the statute unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" (citations omitted). Here, the record does not support a conclusion that the defendants' delay in retaining their expert or in serving their expert information was intentional or willful. Furthermore, disclosure of the expert information was not made on the eve of trial since the plaintiff had two weeks within which to review the material prior to the date when the trial was scheduled to begin. Moreover, any potential prejudice to the plaintiffs could have been eliminated by an adjournment of the trial (citation omitted).

The Advisory Committee’s View Our Advisory Committee believes that the Singletree/Rivers holdings (a) impose a temporal requirement for noticing expert witnesses that contravenes the provisions of CPLR 3101(d)(1)(i) and, in effect, precludes otherwise admissible expert testimony, and (b) contravenes the longstanding application of CPLR 3101(d)(1)(i) to the noticing of experts for trial in relation to the date set for trial of an action or proceeding. Compounding the difficulties practitioners face in navigating the conflicting holding cited above are the multitude of different Judicial District, County, and individual judges’ rules addressing the timing of expert disclosure, many of which are at odds with CPLR 3101(d)(1)(i). Another factor complicating the timing of expert disclosure is the continuing practice in certain counties to permit routine post-note of issue disclosure. This Measure This measure would not alter the circumstances in which expert testimony may be offered. Nor would it alter the rules concerning the admissibility of the reports or data on which the testimony may be premised. This measure is designed to aid in establishing uniformity in practice state-wide, reducing confusion among members of the bench and bar as to the timing of expert disclosure, and making certain that where expert testimony is required or desired in support or opposition to a summary motion, the functional equivalent of a trial, that parties have the same latitude to utilize expert testimony as they do at trial.



This measure, which would have no fiscal impact on the public treasury, would take effect immediately and apply to all actions pending on or after such effective date. Legislative History: None. New proposal.



ii. Mandatory E-Filing, Effective August 31, 2015

E-filing has been an on-going pilot project in New York State courts for several

years. By virtue of several laws enacted over the past 15 years, the Legislature has

authorized OCA to implement e-filing in certain counties and certain courts. In some

situations, e-filing is mandatory; in others, it’s consensual among the parties to a given

action (see Siegel, New York Practice § 63 [Connors 5th ed]). By a new law, L. 2015,

ch. 237, effective August 31, 2015, the Legislature (1) permanently authorized mandatory

e-filing in Supreme Court, Surrogate’s Court, and the New York City Civil Court; (2)

expanded the authority of OCA to designate classes of cases for mandatory e-filing

(subject to certain exclusions and conditions); and (3) provided that unrepresented

litigants are automatically excluded from e-filing unless they affirmatively consent to

participate in the e-filing program. OCA may make e-filing mandatory in any county,

provided that OCA obtains the consent of the relevant county clerk, and consults with

and considers comments from specified stakeholders. Several Uniform Rules have been

amended as a result of the new law (see, e.g., 22 NYCRR 202.5-b, 202.5-bb).

N.B.: Under the new law, mandatory e-filing is not permitted in matrimonial actions, election law proceedings, proceedings under CPLR 70 and 78, proceedings under the Mental Hygiene Law, certain residential mortgage foreclosure actions, and certain consumer credit actions (22 NYCRR 202.5-bb[a][2]). Consensual e-filing is permissible in the actions and proceeding excluded from mandatory e-filing.



b. 2014 Amendments

i. CPLR 2106 Effective January 1, 2015 R 2106. Affirmation of truth of statement by attorney, physician, osteopath or dentist • [Until Jan 1, 2015, Rule 2106 reads as set out below] The statement of an

attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit.[Eff Jan 1, 2015, Rule 2106 reads as set out below and it section heading reads as follows: "Affirmation of truth of statement [fig 1] ]

(a) The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit.

(b) [Added, L 2014] The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this [-----] day of [----------] , [----------] , under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.(Signature)



ii. CPLR 2214© Effective January 1, 2015

R 2214. Motion papers; service; time • (a) Notice of motion. A notice of motion shall specify the time and place

of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.

(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least [fig 1] sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.

(c) Furnishing papers to the court. Each party shall furnish to the court all papers served by [fig 1] that party . The moving party shall furnish [fig 2] all other papers not already in the possession of the court necessary to the consideration of the questions involved. Except when the rules of the court provide otherwise, in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system. Where such papers are in the possession of an adverse party, they shall be produced by [fig 3] that party at the hearing on notice served with the motion papers. Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct.

(d) Order to show cause. The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein. An order to show cause against a state body or officers must be served in addition to service upon the defendant or respondent state body or officers upon the attorney general by delivery to an assistant attorney general at an office of the attorney general in the county in which venue of the action is designated or if there is no office of the attorney general in such county, at the office of the attorney general nearest such county.



iii. CPLR 3113(c) Effective September 23, 2014

R 3113. Conduct of the examination • (a) Persons before whom depositions may be taken. Depositions may be

taken before any of the following persons except an attorney, or employee of an attorney, for a party or prospective party and except a person who would be disqualified to act as a juror because of interest in the event or consanguinity or affinity to a party:1. within the state, a person authorized by the laws of the state to administer oaths; 2. without the state but within the United States or within a territory or possession subject to the jurisdiction of the United States, a person authorized to take acknowledgments of deeds outside of the state by the real property law of the state or to administer oaths by the laws of the United States or of the place where the deposition is taken; and 3. in a foreign country, any diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within, the country, or a person appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed "To the Appropriate Authority in (here name the state or country)."

(b) Oath of witness; recording of testimony; objections; continuous examination; written questions read by examining officer. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction, record the testimony. The testimony shall be recorded by stenographic or other means, subject to such rules as may be adopted by the appellate division in the department where the action is pending. All objections made at the time of the examination to the qualifications of the officer taking the deposition or the person recording it, or to the manner of taking it, or to the testimony presented, or to the conduct of any person, and any other objection to the proceedings, shall be noted by the officer upon the deposition and the deposition shall proceed subject to the right of a person to apply for a protective order. The deposition shall be taken continuously and without unreasonable adjournment, unless the court otherwise orders or the witness and parties present otherwise agree. In lieu of participating in an oral examination, any party served with notice of taking a deposition may transmit written questions to the officer, who shall propound them to the witness and record the answers.

(c) Examination and cross-examination. Examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court, except that a non-party deponent's counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party . When the deposition of a party is taken at the instance of an adverse party, the deponent may be cross-examined by his or her own attorney. Cross-examination need not be limited to the subject matter of the examination in chief.

(d) The parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically. The stipulation shall designate reasonable provisions to ensure that an accurate record



of the deposition is generated, shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may physically be present at the deposition; and shall provide for any other provisions appropriate under the circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.



iv. CPLR 3122-a Effective January 1, 2015 R 3122-a. Certification of business records • (a) Business records produced pursuant to a subpoena duces tecum under

rule 3120 shall be accompanied by a certification, sworn in the form of an affidavit and subscribed by the custodian or other qualified witness charged with responsibility of maintaining the records, stating in substance each of the following:

1. The affiant is the duly authorized custodian or other qualified witness and has authority to make the certification;

2. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies thereof are accurate versions of the documents described in the subpoena duces tecum that are in the possession, custody, or control of the person receiving the subpoena;

3. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies produced represent all the documents described in the subpoena duces tecum, or if they do not represent a complete set of the documents subpoenaed, an explanation of which documents are missing and a reason for their absence is provided; and

4. The records or copies produced were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.

(b) A certification made in compliance with subdivision (a) is admissible as to the matters set forth therein and as to such matters shall be presumed true. When more than one person has knowledge of the facts, more than one certification may be made.

(c) A party intending to offer at a trial or hearing business records authenticated by certification subscribed pursuant to this rule shall, at least thirty days before the trial or hearing, give notice of such intent and specify the place where such records may be inspected at reasonable times. No later than ten days before the trial or hearing, a party upon whom such notice is served may object to the offer of business records by certification stating the grounds for the objection. Such objection may be asserted in any instance and shall not be subject to imposition of any penalty or sanction. Unless objection is made pursuant to this subdivision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this subdivision, business records certified in accordance with this rule shall be deemed to have satisfied the requirements of subdivision (a) of rule 4518. Notwithstanding the issuance of such notice or objection to same, a party may subpoena the custodian to appear and testify and require the production of original business records at the trial or hearing.

(d) [Added, L 2014] The certification authorized by this rule may be used as to business records produced by non-parties whether or not pursuant to a subpoena so long as the custodian or other qualified witness attests to the facts set forth in paragraphs one, two and four of subdivision (a) of this rule.



v. CPLR 3216 Effective January 1, 2015 R 3216. Want of prosecution • (a) [Until Jan 1, 2015, subs (a) and (b) read as set out below] Where a

party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.

(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:

(1) Issue must have been joined in the action; (2) One year must have elapsed since the joinder of issue; (3) The court or party seeking such relief, as the case may be, shall

have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed.

(a) [Eff Jan 1, 2015, subs (a) and (b) read as set out below] Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.

(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:

(1) Issue must have been joined in the action; (2) One year must have elapsed since the joinder of

issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later ;

(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in



complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed. Where the written demand is served by the court, the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.

(c) In the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule serves and files a note of issue within such ninety day period, the same shall be deemed sufficient compliance with such demand and diligent prosecution of the action; and in such event, no such court initiative shall be taken and no such motion shall be made, and if taken or made, the court initiative or motion to dismiss shall be denied.

(d) After an action has been placed on the calendar by the service and filing of a note of issue, with or without any such demand, provided, however, if such demand has been served, within the said ninety day period, the action may not be dismissed by reason of any neglect, failure or delay in prosecution of the action prior to the said service and filing of such note of issue.

(e) In the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule fails to serve and file a note of issue within such ninety day period, the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action.

(f) The provisions of this rule shall not apply to proceedings within rule thirty-four hundred four.



c. Rule Changes Redaction Of “Confidential Personal Information”

22 NYCRR 202.5(e) (effective January 1, 2015)

22 NYCRR 202.5(e) (compliance with which is mandatory effective March 1,

2015) requires parties to omit or redact “confidential personal information” from court

filings. “Confidential personal information” means: taxpayer identification numbers;

Social Security numbers; employer identification numbers; dates of birth (except year);

full names of minors; financial account numbers (except last four digits) (see

202.5[e][1]). The rule does not apply in matrimonial actions, Surrogate’s Court

proceedings, or Mental Hygiene Law article 81 matters. The court, sua sponte or on the

motion of a party, may take corrective action if a filing contains confidential personal

information (202.5[e][2]). A party may apply for leave to include confidential personal

information in court filings (202.5[e][3]).



II. Spoliation

a. Amendment To Fed.R.Civ.P. 37 Effective December 1, 2015 Significant amendments to the Federal Rules of Civil Procedure took effect on

December 1, 2015. Relevant to ESI and spoliation are the change to Rule 37:

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions … (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

The 2015 amendment to FRCP 37(e) expressly rejects the Second Circuit

approach: "This subdivision authorizes courts to use specified and very severe measures

to address or deter failures to preserve electronically stored information, but only on

finding that the party that lost the information acted with the intent to deprive another

party of the information's use in the litigation. It is designed to provide a uniform

standard in federal court for use of these serious measures when addressing failure to

preserve electronically stored information. It rejects cases such as Residential Funding

Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that authorize the

giving of adverse-inference instructions on a finding of negligence or gross negligence."

(Advisory Comments).



b. Court of Appeals Accepts the First Department’s Adoption of Zubulake

Pegasus Aviation I, Inc. v Varig Logistica S.A., 2015 NY Slip Op 09187, 2015 N.Y. LEXIS 3863 (2015).

The First Department’s adoption of related e-discovery holdings from Zubulake

was cited with approval by the Court of Appeals, in Pegasus Aviation I, Inc. v Varig

Logistica S.A.,1 in determining first, whether a spoliation sanction was warranted and,

second, if warranted, what the appropriate sanction should be:

A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a "culpable state of mind," and "that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Voom HD Holdings LLC v Echostar Satellite L.L.C., [citation omitted], quoting Zubulake v UBS Warburg LLC [citation omitted]). Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed (see Zubulake [citation omitted]). On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party's claim or defense (citation omitted).

Where the evidence spoliated is in electronic form, the First Department has

adopted the well-known federal rule set forth in Zubulake v. UBS Warburg that “[o]nce

a party reasonably anticipates litigation, it must suspend its routine document

retention/destruction policy and put in place a litigation hold to ensure the preservation of

relevant documents.”2 The First Department explained what was required once the duty

to preserve was triggered in Voom HD Holdings, LLC v. EchoStar Satellite, LLC:3

Once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data.

12015 NY Slip Op 09187, 2015 N.Y. LEXIS 3863 (2015).2 Voom HD Holdings, LLC v. EchoStar Satellite, LLC, 93 A.D.3d 33, 36, 939 N.Y.S.2d 321, 324 (1st Dep’t 2012). 3 Voom HD Holdings, LLC v. EchoStar Satellite, LLC, 93 A.D.3d 33, 36, 939 N.Y.S.2d 321, 324 (1st Dep’t 2012).



[While it is the best practice that this litigation hold be in writing, we recognize that there might be certain circumstances, for example, a small company with only a few employees, in which an oral hold would suffice]. Regardless of its nature, a hold must direct appropriate employees to preserve all relevant records, electronic or otherwise, and create a mechanism for collecting the preserved records so they might be searched by someone other than the employee. The hold should, with as much specificity as possible, describe the ESI at issue, [For example, ESI may exist on employees’ home computers, on flash drives or Blackberrys, in a cloud computing infrastructure or off-site on a remote server or back-up tapes] direct that routine destruction policies such as auto-delete functions and rewriting over e-mails cease, and describe the consequences for failure to so preserve electronically stored evidence. In certain circumstances, like those here, where a party is a large company, it is insufficient, in implementing such a litigation hold, to vest total discretion in the employee to search and select what the employee deems relevant without the guidance and supervision of counsel.

In 915 Broadway v. Paul, Hastings, Janofsky & Walker,4 one of the first cases

applying Voom, a trial court imposed the most stringent spoliation sanction available, and

struck the plaintiff’s amended complaint, for the spoliation of ESI:5

Generally, dismissal of a cause of action is warranted where the destroyed evidence is key to the innocent party’s claims or defenses (citation omitted). However, [i]t is fundamentally unfair to require [a party] to come forward with evidence that the destroyed [documents] are key evidence … , where [the party] has no way of knowing what records were destroyed. That is exactly why there are sanctions for spoliation. [The party] will never know what was in the records … which is why [the spoliating party] should have preserved the records (citation omitted).

* * * These failures resulted in the destruction of relevant electronic documents, which has prevented Paul Hastings from defending the causes of action asserted against it. It is fundamentally unfair to require Paul Hastings to defend itself in a vacuum.

4 2012 NY Slip Op 50285(U), 34 Misc. 3d 1229(A) (Supreme Court, New York County 2012). 5 915 Broadway Assoc. LLC v. Paul, Hastings, Janofsky & Walker, LLP, 2012 NY Slip Op 50285(U), 34 Misc. 3d 1229(A) (Supreme Court, New York County 2012).



The First Department held, in Pegasus Aviation I, Inc. v. Varig Logistica S.A.,6

that a party’s failure to issue a litigation hold to the members of its organization directing

preservation of ESI is not per se gross negligence. On appeal, the majority of Court of

Appeals affirmed the appellate division’s determination that the spoliating party’s

conduct constituted negligence, not gross negligence, and remanded to the trial court for

a determination as to whether the destroyed evidence was relevant and, if so, the

sanction, if any, that was warranted.7

The First Department, in Strong v. City of New York,8 distinguished between

electronic spoliation cases and “traditional” spoliation cases, holding that New York’s

traditional common law rules for spoliation continued to govern non-ESI cases.

However, it is not clear that this distinction survives the decision of the Court of Appeals

in Pegasus, above.9

6 Pegasus Aviation I, Inc. v. Varig Logistica S.A., 118 A.D.3d 428, 987 N.Y.S.2d 350 (1st Dep’t 2014). 7 Pegasus Aviation I, Inc. v. Varig Logistica S.A., 2015 NY Slip Op 09187, 2015 N.Y. LEXIS 3863 (2015). 8Strong v. City of New York, 112 A.D.3d 15, 23, 973 N.Y.S.2d 152, 158 (1st Dep’t 2013) (“We are aware that a few recent decisions by this Court, in cases involving destruction of non-ESI evidence, quote the Zubulake or Voom formulation, implicitly employing the federal standard for spoliation of non-electronic evidence (citations and parentheticals omitted). We nevertheless conclude that reliance on the federal standard is unnecessary in this context. Zubulake interpreted federal rules and earlier federal case law to adapt those rules to the context of ESI discovery. However, the erasure of, and the obligation to preserve, relevant audiotapes and videotapes, can be, and has been, fully addressed without reference to the federal rules and standards.”).9Pegasus Aviation I, Inc. v. Varig Logistica S.A., 2015 NY Slip Op 09187, 2015 N.Y. LEXIS 3863 (2015).



Fourth Department Holds Duty To Preserve Arises When Litigation Should Have Been Anticipated Simoneit v. Mark Cerrone, Inc., 122 A.D.3d 1246, 996 N.Y.S.2d 810 (4th Dep’t 2014)

In a motor vehicle accident case involving a school bus, the Fourth Department

reversed the trial court and imposed a spoliation sanction against the defendant bus

company, striking its affirmative defenses alleging brake failure due to defendant’s post-

accident replacement and destruction of the allegedly defective parts. The court held the

defendant “should have anticipated that litigation was likely,” where several of the school

children were removed from the scene by ambulance and the brake parts were a “crucial

piece of evidence” to support the defense.

Jury Question Whether Spoliation Sanction Warranted Pennachio v. Costco Wholesale Corp., 119 A.D.3d 662, 990 N.Y.S.2d 54 (2d Dep’t 2014)

Plaintiff alleged he was injured when he reached for a broken shrink-wrapped

glass jar of olives on a store shelf in a store owned by the defendant. While defendant

originally retained the subject jar and marked it as “evidence,” not to be discarded, the jar

was later discarded inadvertently.

While the lesser sanction of an adverse inference may be appropriate for spoliation of the subject jar (citations omitted), under the circumstances of this case, an issue of fact exists as to whether spoliation of relevant evidence occurred. The sanction of an adverse inference for spoliation of evidence is not warranted when the evidence destroyed is not relevant to the ultimate issues to be determined in the case (citation omitted). As noted above, the plaintiff submitted an expert affidavit averring that she could have determined how long the jar had been broken by analyzing the mold contained in the jar, and the defendant submitted an expert affidavit disputing that such a conclusion could have been reached. If the opinion of the defendant's expert were credited, then an adverse inference would not be warranted, because the lost evidence would not have been relevant to the plaintiff's case (citation omitted). Thus, this issue of fact should be placed before the jury, along with the inferences to be drawn therefrom (citations omitted). The jury should be instructed that, if it credits the opinion of the



defendant's expert that no conclusion could have been reached with reasonable certainty regarding how long the jar had been broken by analyzing the mold contained in the jar, then no adverse inference should be drawn against the defendant. On the other hand, the jury should be advised that, if it credits the opinion of the plaintiff's expert that she could have determined how long the jar had been broken by analyzing the mold inside, then it would be permitted to draw an adverse inference against the defendant (citations omitted).

Spoliation of ESI AJ Holdings Group, LLC v IP Holdings, LLC, 129 A.D.3d 504, 11 N.Y.S.3d 55 (1st Dep’t 2015)

Plaintiff’s failure to ensure that its principals, who were all involved in the instant transactions, preserved their emails on various accounts used by them, and its failure to implement any uniform or centralized plan to preserve data or even the various devices used by the ′′key players′′ in the transaction, demonstrated gross negligence with regard to the deletion of the emails (citation omitted). This gross negligence gave rise to a rebuttable presumption that the spoliated documents were relevant (id.). However, plaintiff sufficiently rebutted that presumption by demonstrating that the defenses available to defendants all necessarily turned on communications to or with them, not plaintiff’s internal communications. In particular, defendants claim that there was an oral modification to the parties’ contract, whereby plaintiff waived the termination provisions. This is despite the fact that the agreement contained a clause barring oral modifications. In such a circumstance, defendants must establish an executed oral modification, or partial performance or estoppel ′′unequivocally referable′′ to the alleged oral modification (citation omitted). Because defendants can have only relied on communications they received from plaintiff to establish this defense, there is no sense in which the deleted internal emails of plaintiff would be relevant. As such, it was error to impose spoliation sanctions. The IAS court correctly held that plaintiff’s motion to ′′renew′′ its previous summary judgment motion was actually an untimely motion to reargue, as plaintiff based it not on any newly discovered information, but on the theory that the IAS court had ′′overlooked′′ the integration clause in the agreement (citation omitted). Moreover, as theIAS court held, plaintiff can bring the motion again at the close of discovery.



Privilege Logs For ESI Carpezzi-Liebert Group Inc. v. Henn, 2015 NY Slip Op 30132(U)

This is an action for a permanent injunction and damages based on a sales representative's alleged failure to comply with the terms of a non-solicitation agreement with his former employer, plaintiff, Carpezzi-Leibert Group Inc., d/b/a CLG, CLG Insurance and/or CLG Financial ("Plaintiff' or "CLG"). Plaintiff is a full service insurance brokerage engaged in the business of providing risk management, insurance and surety solutions for businesses and individuals. Plaintiff hired defendant, Thomas V. Henn ("Henn"), as an insurance/surety sales representative or "producer" ("Producer") in January 2010. Henn and CLG entered into an employment agreement (the "Employment Agreement") containing a non-solicitation provision (the "Non-Solicitation Provision" or "Non-Solicitation Clause"), in September 2010, approximately nine months later. Plaintiff claims that the Employment Agreement's terms, including the Non-Solicitation Provision, were extensively negotiated in the interim. The Non-Solicitation Clause prohibits Henn from, inter alia, soliciting, servicing, engaging in business discussions and dealings with and accepting business from clients and entities with whom he had a direct business relationship during his employment with CLG, for a period of two years following the termination of Henn's employment with CLG. On February 20, 2014, Henn resigned from CLG, without prior notice to CLG, effective immediately. On February 21, 2014, Henn joined defendant Marsh USA Inc. ("Marsh") (and together with Henn, collectively, "Defendants"), CLG's competitor, with whom Henn currently is employed. Plaintiff claims that, following Henn's resignation, Henn misappropriated several major clients from CLG "in a matter of weeks", and "thwarted other key business relationships" belonging to CLG. Additionally, Plaintiff claims that Henn, on Marsh's behalf, continues to solicit CLG clients, interfere with CLG's surety relationships, and misappropriate CLG's confidential, proprietary, and trade secret information, in violation of the Non-Solicitation Provision. Plaintiff brings this action to enjoin Defendants for a period of two years from soliciting CLG's clients, engaging in business dealings with non-party underwriter NAS Surety ("NAS") as to certain former CLG clients, and using CLG's confidential, proprietary, and trade secret information. Plaintiff now moves (Mot. Seq. #003) for an Order, pursuant to CPLR § 3124, compelling Defendants to respond to Plaintiff's interrogatories and to produce all documents responsive to Plaintiffs discovery requests in unredacted form. Defendants oppose. Oral argument was heard on Plaintiff's motion. At oral argument, Plaintiff's motion to compel items which were redacted during disclosure by defendants was resolved as follows: "Defendant is to submit to this Court a privilege log with the redactions for the Court to determine whether or not they are relevant and should be turned over pursuant to the stipulation between



the parties and for attorneys' eyes only." CPLR § 3101(a) generally provides that, "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The Court of Appeals has held that the term "material and necessary" is to be given a liberal interpretation in favor of the disclosure of "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity," and that "[t]he test is one of usefulness and reason" (citation omitted). In addition, CPLR § 3130 and 3131 permit a party to serve interrogatories that "relate to [4] any matters embraced in the disclosure requirements of [CPLR § 3101]". Accordingly, Defendants are directed to respond to Plaintiff's interrogatories. With respect to that portion of Plaintiff's motion seeking to compel production of documents in unredacted form, Defendants have produced, for the Court's in camera review, unredacted portions of Defendants' document production, along with a redaction log documenting Defendants' reasons for redacting the corresponding information from production. Plaintiff, in turn, submits a list of clients that Henn allegedly serviced on CLG's behalf during the period of Henn's employment with CLG. Plaintiff further submits an additional list of clients that Henn allegedly solicited or was tasked with soliciting on CLG's behalf during the period of Henn's employment with CLG. Defendant does not submit opposition these documents. Here, upon review of the attached documents and privilege log submitted, the following documents are not properly redacted:

• The document which is Bates stamped # D004214, in which the line identified as "redacted line 7" is not properly redacted; • The document which is Bates stamped # D004229, in which the line identified as "redacted [5] line 7" is not properly redacted; • The document which is Bates stamped # D004234, in which the line identified as "redacted line 7" is not properly redacted; • The document which is Bates stamped # D004317, in which the lines identified as "Row 21", "Row 23", and "Row 25" are not properly redacted; • The document which is Bates stamped # D005057, in which the lines identified as "Row 25" and "Row 34" are not properly redacted; • The document which is Bates stamped # D005063, in which the lines identified as "Row 210" and "Row 211" are not properly redacted; and, • The document which is Bates stamped # D005075, in which the line identified as "Redacted line 3" is not properly redacted.

However, with respect to the remaining redacted information contained in the attached documents, Defendants' privilege log does not provide sufficient detail for the Court to determine whether the remaining redactions, particularly with



respect to Henn's text messages and iphone calendar entries, are properly redacted. Accordingly, Defendants are directed to provide a more detailed privilege log, identifying the names of the individuals with whom Henn exchanged the redacted text messages in the attached documents, [6] and providing further, non-conclusory, explanation as to whether such individuals, as well as the individuals identified in the redacted iphone calendar entries, are CLG clients, prospects, employees, or former employees.



III. The Interplay Between CPLR 3216 & CPLR 3404

Second Department Holds That Where Prior Court Order “Was Effective To Return The Action To Pre-Note Status,” CPLR 3404 Inapplicable & CPLR 3216 Demand Necessary To Obtain Dismissal Paradiso v. St. John’s Episcopal Hosp., 2015 NY Slip Op 09413 (2d Dep’t 2015)

The note of issue was vacated on April 29, 2013, and the plaintiff was not thereafter served with a 90-day demand pursuant to CPLR 3216. In June 2014, the defendant moved pursuant to CPLR 3404 to dismiss the complaint as abandoned . The plaintiff opposed the motion, asserting that CPLR 3404 was inapplicable. The Supreme Court granted the defendant's motion. We reverse. When the note of issue was vacated, the case reverted to its pre-note of issue status, and CPLR 3404 did not apply to this case (citations omitted). Accordingly, the defendant's motion pursuant to CPLR 3404 to dismiss the complaint should have been denied (citation omitted). Contrary to the defendant's contention raised for the first time on appeal, this action could not have properly been dismissed pursuant to CPLR 3126 based upon the plaintiff's failure to comply with court-ordered discovery, since there was no motion requesting this relief and the plaintiff was not afforded an opportunity to be heard on this issue (citations omitted).

CPLR 3404: Third Department Diverges From First & Second Departments And Hold CPLR 3404 Applied Where A Note Of Issue Was Filed, The Action Was Placed On The Calendar, And The Note Was Subsequently Vacated Hebert v Chaudrey, 119 A.D.3d 1170, 989 N.Y.S.2d 399 (3d Dep’t 2014)

CPLR 3404 provides that “[a] case ¼ marked ‘off’ or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed ¼ for neglect to prosecute.” In Herbert, the Third Department confronted a situation where a plaintiff’s note of issue was vacated and the case concomitantly struck from the trial calendar, and a new note of issue was not filed until two years later. The Court applies CPLR 3404, and finds that the action was abandoned.

N.B.: As of January 6, 2016 Herbert has not been cited by any court.



CPLR 3402

R 3402. Note of issue (a) Placing case on calendar. At any time after issue is first joined, or at least forty days after service of a summons has been completed irrespective of joinder of issue, any party may place a case upon the calendar by filing, within ten days after service, with proof of such service two copies of a note of issue with the clerk and such other data as may be required by the applicable rules of the court in which the note is filed. The clerk shall enter the case upon the calendar as of the date of the filing of the note of issue.



IV. CPLR 205(a) When Does Prior Action Terminate For Purposes Of CPLR 205(a)? Malay v City of Syracuse, 25 N.Y.3d 323, 12 N.Y.S.3d 1 (2015)

Where an appeal is taken as of right, the prior action terminates for purposes of

CPLR 205(a) when a nondiscretionary appeal is exhausted either by a determination on

the merits or by dismissal of the appeal. CPLR 205(a) allows a plaintiff to re-file claims

within six months of a timely-commenced prior action's termination, provided the prior

action was not discontinued, dismissed because the court lacked personal jurisdiction

over the defendant, terminated due to a plaintiff's unwillingness to prosecute the claims in

a diligent manner, or resolved on the merits. CPLR 205(a) only applies when the prior

action was commenced in a court in New York (Guzy v City of New York, 129 A.D.3d

614, 12 N.Y.S.3d 614 [1st Dept, 2015]). The measuring rod for the six-month period is

the prior action’s “termination.” What marks the termination of a prior action where the

losing party in that action takes an appeal? In Leham Bros. v. Hughes Hubbard & Reed,

92 N.Y.2d 1014, 684 N.Y.S.2d 478 (1998), the Court held that a prior action terminates

when an appeal taken as of right is exhausted or where discretionary appellate review is

granted on the merits. In Malay, the Court considered the termination point of a prior

action when an appeal is taken as of right but is dismissed by the appellate court due to

the appellant’s failure to perfect the appeal. The Court held that the prior action

terminates when the appeal is dismissed. The Court rejected the argument of the

defendant in action number two that the prior action had terminated when the underlying

order appealed from was entered, an earlier point that would have meant that action

number two was not commenced within the six-month window.



N.B.: Do not abandon appeals from interlocutory orders. The dismissal of an appeal

from an interlocutory order for want of prosecution can have a significant effect on a

subsequent appeal in the action (see Siegel, New York Practice § 542 [Connors 5th ed]).

If you take an appeal from an interlocutory order and do not want to pursue that appeal,

consider moving to withdraw it.



V. Commencement & Pleadings

a. Non-Resident Attorney Must Maintain Office In New York Court of Appeals Holds Non-Resident New York Attorney Must Maintain A Physical Office In New York

Schoenfeld v. State of New York, 25 N.Y.3d 22, 29 N.E.3d 230, 6 N.Y.S.3d 221 (2015)

In this case, the United States Court of Appeals for the Second Circuit has asked us to set forth the minimum requirements necessary to satisfy the statutory directive that nonresident attorneys maintain an office within the State "for the transaction of law business" under Judiciary Law § 470. We hold that the statute requires nonresident attorneys to maintain a physical office in New York.

Trial Court Discusses Split In Departments Over Impact Of Non-Compliance With Schoenfeld Pupilla Garcia v. Emerson, 2015 NY Slip Op 30910(U) (Sup. Ct., Suffolk County 2015) In a post-Schoenfeld decsion, Acting Justice Farneti, Supreme Court, Suffolk

County, explained the current split between the First and Second Departments:

Here, it is undisputed that Ms. McCart does not maintain a physical office in New York. As a general rule, the fact that a party has been represented by a person who was not authorized or admitted to practice law under the Judiciary Law whether a disbarred attorney or a person practicing law without a license does not create a "nullity" or render all prior proceedings void per se. The same principle applies when a party is represented by an attorney who, although a member in good standing of the bar of the State of New York, has failed to demonstrate compliance with Judiciary Law § 470 (citation omitted). Thus, the Second Department has held that a violation of Judiciary Law § 470 does not provide a basis for a defendant to have the complaint against it dismissed (citations omitted) [while] the First Department applies Judiciary Law § 470 so strictly that it requires dismissal of the action, albeit without prejudice, for a violation of the statute, while the Second Department is not as strict about this requirement]). Furthermore, a defendant may not take advantage of a plaintiffs counsel's noncompliance with Judiciary Law § 470 (citation omitted).



b. CPLR 2001 Amendment Plaintiff’s Failure To File Initiatory Papers With The Proper Clerk Is A Non-Waivable Jurisdictional Defect

O’Brien v. Contreras, 126 A.D.3d 958, 6 N.Y.S.3d 273 (2d Dep’t 2015)

An action or proceeding is commenced by filing with the appropriate clerk a

summons and complaint, a summons with notice, or a petition. In a Supreme Court

action, the filing must be made with the County Clerk. In response to a number of Court

of Appeals decisions that found that defects in the commencement of an action or

proceeding weren’t forgivable or correctable if raised by an adversary (see e.g. Harris v

Niagara Falls Board of Education, 6 N.Y.3d 155, 811 N.Y.S.2d 299 [2006]; Fry v

Village of Tarrytown, 89 N.Y.2d 714, 658 N.Y.S.2d 205 [1997]; Gershel v Porr, 89

N.Y.2d 327, 653 N.Y.S.2d 82 [1996]), the Legislature amended CPLR 2001 to provide

courts with the discretion to ignore or permit the correction of non-prejudicial defects in

the process of filing commencement papers.

However, CPLR 2001 does not allow a court to forgive or permit correction of a

plaintiff’s failure to file the initiatory papers. That mistake is a non-waivable

jurisdictional defect. The plaintiff in O’Brien obtained an index number and moved by

an order to show cause to modify the terms of an agreement between the parties, but the

plaintiff never filed or served a summons and complaint or other form of initiatory

papers. As a result of that omission, the court never obtained personal jurisdiction over

the defendant and the action was a “nullity.”



Fourth Department Cites Goldenberg & O’Brien & Dismisses Claim Fox v. City of Utica, 2015 NY Slip Op 08267, 18 N.Y.S.3d 918 (4th Dep’t 2015)

Plaintiff filed a verified claim in this action and, before answering, defendant filed a CPLR 3211 motion to dismiss, contending that plaintiff had "yet to file a Summons or a Complaint" and that "a complete failure to file is a jurisdictional defect." Relying upon CPLR 2001, Supreme Court deemed the claim to be a complaint and excused the failure to file a summons as "an irregularity that shall be disregarded in this case." That was error. We agree with defendant that CPLR 2001 does not permit a court to disregard the complete failure to file a summons, i.e., an initial paper necessary to commence an action (citations omitted). As recognized by the Court of Appeals in quoting from the Senate Introducer's Memorandum in support of the bill that amended CPLR 2001, the statute may be invoked as a basis to correct or clarify " a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED'" (citation omitted [capitalization in original]).

Compare, Feld v. Ginsburg, 46 Misc.3d 1216(A), 9 N.Y.S.3d 593 (Sup. Ct., West. Cty. 2015)

The plaintiff disputed the counsel fee charged by defendant and the matter proceeded to arbitration on August 25, 2014 (22 NYCRR Part 137). The notice of arbitration award and arbitration award ($6,6011.38) were mailed to plaintiff on September 2, 2014. On October 7, 2014, plaintiff commenced this action for de novo review (citation omitted). 22 NYCRR 137.8(a) provides, "[a] party aggrieved by the arbitration award may commence an action on the merits of the fee dispute in a court of competent jurisdiction within 30 days after the arbitration award has been mailed. If no action is commenced within 30 days of the mailing of the arbitration award, the award shall become final and binding." The 30-day period is absolute and the court does not have discretion to excuse the late commencement of the action for de novo review (citations omitted). Thus, plaintiff's action, which was commenced 35 days after the mailing of the notice of arbitration award, is dismissed as untimely. Contrary to plaintiff's contention, his failure to timely commence the action is not "a mistake, omission, defect or irregularity" (citation omitted) the court can disregard or correct. The action was not timely commenced because counsel failed to e-file the complaint within 30 days of the mailing of the arbitration award (citation omitted). Thus, the action was not timely commenced due to law office failure, and not due to a "glitch" in the e-filing system. CPLR 2001is "not intended to excuse a complete failure to file within the statute of limitations" (citation omitted).



Partnerships & Limited Partnerships Must Be Represented By Counsel In Court Proceedings

Ernest & Maryanna Jeremias Family Partnership, L.P. v Sadykov, 48 Misc.3d 8, 11 N.Y.S.3d 792 (App. Term, 2d Dep’t 2015) CPLR 321(a) provides that, generally, “[a] party . . . may prosecute or defend a

civil action in person or by attorney, except that a corporation or voluntary association

shall appear by attorney.” Does the appear-by-counsel rule apply to partnerships and

limited partnerships? “Yes,” says the Appellate Term, Second Department, because such

entities were historically considered subsets of “voluntary associations” and they are

equivalent to artificial or juridical entities (e.g., corporations), which require

representation in court proceedings.

c. Service of Process Saturday Service On A Sabbath Observer Void Tenenbaum v Setton, 49 Misc 3d 39, 18 NYS3d 498 (App. Term, 2d Dep’t 2015)

Service of process is permitted any day except Sunday, and service on Sunday is

typically void (General Business Law § 11). General Business Law § 13, however,

provides that, “[w]hoever maliciously procures any process in a civil action to be served

on Saturday, upon any person who keeps Saturday as holy time, and does not labor on

that day, or serves upon him [or her] any process returnable on that day, or maliciously

procures any civil action to which such person is a party to be adjourned to that day for

trial, is guilty of a misdemeanor.” Service made in violation of General Business Law §

13 is void, and personal jurisdiction is not obtained over the party served. That’s the

lesson from Tenenbaum.



d. CPLR 308(5) Service In Matrimonial Action Via Facebook Baidoo v. Blood-Dzraku, 48 Misc.3d 309, 5 N.Y.S.3d 709 (Sup. Ct., New York Cty. 2015)

In the instant application, plaintiff asks the court to find that service of the divorce summons via a social media site, in this case Facebook, constitutes an appropriate form of alternative service under CPLR 308(5). Moreover, contending that she has no other way to reach defendant, she requests that this judicially-crafted method of service be designated the only means by which notice of the divorce action is given. In order for her application to be granted, plaintiff must first demonstrate that she is unable to have the summons personally served on defendant, the method of service initially prescribed by DRL § 232(a). Next, she must show that it would be "impracticable" to serve him by "substitute service" on a person of suitable age and discretion (citation omitted) or by using "nail and mail" (citation omitted). Finally, she must show that sending the summons through Facebook can reasonably be expected to give him actual notice that he is being sued for divorce. Plaintiff has easily met the requirement of demonstrating that she will be unable to effect personal service on defendant. Although the parties married in 2009, they never resided together, and the last address plaintiff has for defendant is an apartment that he vacated in 2011. Plaintiff has spoken with defendant by telephone on occasion and he has told her that he has no fixed address and no place of employment. He has also refused to make himself available to be served with divorce papers. As detailed in her attorney's affirmation, the investigative firms that plaintiff hired to assist in locating defendant have all been unsuccessful in their efforts, the post office has no forwarding address for him, there is no billing address linked to his pre-paid cell phone, and the Department of Motor Vehicles has no record of him. Inasmuch as plaintiff is unable to find defendant, personal delivery of the summons to him is an impossibility. Similarly, plaintiff has shown that it would be an exercise in futility to attempt the two alternative service methods provided for by CPLR 308. Both "substitute service" and "nail and mail" service require knowledge of the defendant's "actual place of business, dwelling or usual place of abode" (citation omitted). The record establishes that plaintiff has been unsuccessful in obtaining either a business or home address for defendant, even though she has diligently sought that information. As a result, she has met her burden of demonstrating that it would be impracticable to attempt to serve defendant by either of these methods (citation omitted) Having demonstrated a sound basis for seeking alternative service pursuant to CPLR 308(5), plaintiff must now show that the method she proposes is one that



the court can endorse as being reasonably calculated to apprise defendant that he is being sued for divorce. This hurdle poses a number of challenges. First, there are only a handful of reported decisions, mostly from federal district courts, that have addressed the issue of service of process being accomplished through social media, with there being an almost even split between those decisions approving it and those rejecting it (citations oitted) Second, as will be further discussed, the cases permitting such service have done so only on condition that the papers commencing the lawsuit be served on the defendant by another method as well. Thus, in seeking permission to effectuate service of the divorce summons by simply sending it to defendant through a private Facebook message, plaintiff is asking the court, already beyond the safe harbor of statutory prescription, to venture into uncharted waters without the guiding light of clear judicial precedent. Consideration must also be given to the fact that the way plaintiff proposes to provide defendant with notice of the divorce represents a radical departure from the traditional notion of what constitutes service of process. Even decisions from as recently as 2012 and 2013 have referred to the use of Facebook messaging for the purpose of commencing a lawsuit as being a "novel concept" (citations and parentheticals omitted) That a concept is new to the law is something that may very well require a court to exercise a high degree of scrutiny and independent legal analysis when judicial approval is sought. But a concept should not be rejected simply because it is novel or non-traditional. This is especially so where technology and the law intersect. In this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé. And because legislatures have often been slow to react to these changes, it has fallen on courts to insure that our legal procedures keep pace with current technology (citation and parenthetical omitted). As noted by the United States Court of Appeals for the Ninth Circuit in Rio Properties, Inc. v Rio International Interlink, 284 F3d 1007, 1017 (9th Cir, 2002), one of the earliest cases authorizing service of process by email, the "broad constitutional principles" upon which judicially devised alternative service is based "unshackles . . . courts from anachronistic methods of service and permits them entry into the technological renaissance." In the final analysis, constitutional principles, not the lack of judicial precedent or the novelty of Facebook service, will be ultimately determinative here. The central question is whether the method by which plaintiff seeks to serve defendant comports with the fundamentals of due process by being reasonably calculated to provide defendant with notice of the divorce. Or more simply posed: If the summons for divorce is sent to what plaintiff represents to be defendant's Facebook account, is there a good chance he will receive it? In order for the question to be answered in the affirmative, plaintiff must address a number of this court's concerns. The first is that the Facebook account that



plaintiff believes is defendant's might not actually belong to him. As is well known, the Facebook profile somebody views online may very well belong to someone other than whom the profile purports it to be. This has led courts to observe that "anyone can make a Facebook profile using real, fake, or incomplete information, and thus there is no way for the Court to confirm whether the Facebook page belongs to the defendant to be served" (citations omitted). As a result, this court required plaintiff to submit a supplemental affidavit to verify that the Facebook account she references is indeed that of the defendant. Plaintiff submitted such an affidavit, to which she annexed copies of the exchanges that took place between her and defendant when she contacted him through his Facebook page, and in which she identified defendant as the subject of the photographs that appear on that page. While it is true that plaintiff's statements are not absolute proof that the account belongs to defendant — it being conceivable that if plaintiff herself or someone at her behest created defendant's page, she could fabricate exchanges and post photographs — plaintiff has nevertheless persuaded the court that the account in question does indeed belong to defendant. The second concern is that if defendant is not diligent in logging on to his Facebook account, he runs the risk of not seeing the summons until the time to respond has passed. Here too, plaintiff's affidavit has successfully addressed the issue. Her exchanges with defendant via Facebook show that he regularly logs on to his account. In addition, because plaintiff has a mobile phone number for defendant, both she and her attorney can speak to him or leave a voicemail message, or else send him a text message alerting him that a divorce action has been commenced and that he should check his account (citation and parenthetical omitted). The third concern is whether a backup means of service is required under the circumstances. Although, as was discussed, other court decisions have endorsed using Facebook as a means of service, they have done so only where Facebook was but one of the methods employed, not the only method. As the court stated in PCCare247, Inc., 2013 U.S. Dist. LEXIS 31969, 2013 WL 841037, at*5, "[t]o be sure, if the [plaintiff] were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process." In that case, and as well as in WhosHere, Inc., the other federal court decision authorizing Facebook service, the court stressed that it was allowing the use of a social media site only in conjunction with notice being sent to the defendants by email. In Noel B., 2014 NY Misc LEXIS 4708, at *4, the only decision from a state court permitting service via Facebook, the petitioner was required to mail a copy of the child support summons and petition to the respondent's "previously used last known address." Here, plaintiff does not have an email address for defendant and has no way of finding one. Nor does she have a street address for defendant that could constitute a viable "last known address;" defendant's last known address dates back at least



four years and the post office confirmed that defendant no longer resides there and he has left no forwarding address. Thus, plaintiff has a compelling reason to make Facebook the sole, rather than the supplemental, means of service, with the court satisfied that it is a method reasonably calculated to give defendant notice that he is being sued for divorce. Before granting plaintiff leave to serve defendant via Facebook, a method of alternative service judicially-devised pursuant to CPLR 308(5), there is one remaining question that should be addressed: Why use Facebook as either the sole or the supplemental means of service in the first place when there is a statutorily prescribed method of service readily available? That method is service by publication, something that is specifically authorized under CPLR 315. After all, publication is not only expressly sanctioned by the CPLR, but it is a means of service of process that has been used in New York in one form or another since colonial times. Even today, it is probably the method of service most often permitted in divorce actions when the defendant cannot be served by other means. The problem, however, with publication service is that it is almost guaranteed not to provide a defendant with notice of the action for divorce, or any other law suit for that matter. (Citations omitted). In divorce cases brought in New York County, plaintiffs are often granted permission to publish the summons in such newspapers as the New York Law Journal or the Irish Echo. If that were to be done here, the chances of defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none. The dangers of allowing somebody to be divorced and not know it are simply too great to allow notice to be given by publication, a form of service that, while neither novel or unorthodox, is essentially statutorily authorized non-service. This is especially so when, as here, there is a readily available means of service that stands a very good chance of letting defendant know that he is being sued. Moreover, the court will not require publication in any newspaper even as a backup method to Facebook. Although a more widely circulated newspaper, like the New York Post or the Daily News, might reach more readers, the cost, which approaches $1,000 for running the notice for a week, is substantial, and the chances of it being by seen by defendant, buried in an obscure section of the paper and printed in small type, are still infinitesimal. Under the circumstance presented here, service by Facebook, albeit novel and non-traditional, is the form of service that most comports with the constitutional standards of due process. Not only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him. In light of the foregoing, plaintiff is granted permission to serve defendant with the divorce summons using a private message through Facebook. Specifically, because litigants are prohibited from serving other litigants, plaintiff's attorney



shall log into plaintiff's Facebook account and message the defendant by first identifying himself, and then including either a web address of the summons or attaching an image of the summons. This transmittal shall be repeated by plaintiff's attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.

e. Determining Applicable Statute of Limitations

Breach Of Contract ACE Security Corp. v DB Structured Products, Inc., 25 N.Y.3d 581, 15 N.Y.S.3d 716 (2015)

A breach of contract cause of action accrues when a party possesses the legal right to demand payment from the other party, not when the non-breaching party discovers that it sustained an injury or loss. However, when the contract contains a “substantive” condition precedent to suit, the cause of action does not accrue until that condition has been satisfied. Where a contract makes a demand a condition precedent to a party’s performance under the contract, the condition is a substantive one, and any cause of action for breach of that contract will not accrue until the demand is made (and rejected). The ACE Court stresses the difference between a substantive condition precedent and a demand that merely seeks a remedy for a pre-existing wrong. The former serves to delay the accrual of a cause of action until the condition is satisfied; the latter does not alter the accrual of a cause of action.

Fraud Action Based Upon A Forged Deed Faison v Lewis, 25 N.Y.3d 220, 10 N.Y.S.3d 185 (2015)

CPLR 213(8) provides a six-year statute of limitation for, among other causes of

action, a fraud claim. Does that statute of limitations apply to a cause of action to set

aside (or otherwise undo) a forged deed? “No,” says the Court in Faison. A forged deed

is void ab initio; it’s a legal nullity. Therefore, no statute of limitations defense applies to

a claim against a forged deed or any encumbrance based on it (e.g., a mortgage). The

Court notes that the rule is different with respect to claims for fraudulent inducement.

Where the signature or authority for a conveyance of real property is legitimate (i.e., the



grantor did in fact sign the document) but was acquired by fraudulent means, the deed is

voidable (not void), and is subject to a time bar.

Court Of Appeals Clarifies Discovery Rule Walton v. Strong Mem. Hosp., 25 N.Y.3d 554, 14 N.Y.S.3d 757 (2015) Under CPLR 214-a, “[a]n action for medical, dental or podiatric malpractice must

be commenced within two years and six months of the act, omission or failure

complained of or last treatment where there is continuous treatment for the same illness,

injury or condition which gave rise to the said act, omission or failure; provided,

however, that where the action is based upon the discovery of a foreign object in the body

of the patient, the action may be commenced within one year of the date of such

discovery or of the date of discovery of facts which would reasonably lead to such

discovery, whichever is earlier... For the purpose of this section the term ‘foreign object’

shall not include a chemical compound, fixation device or prosthetic aid or device”

(emphasis added). What is a “foreign object”? The statute doesn’t say.

In Walton, the Court laid out the following principles applicable to the foreign

object rule of accrual: (1) tangible items (clamps, scalpels, sponges, etc.) introduced into

a patient's body solely to carry out or facilitate a surgical procedure are foreign objects if

left behind; (2) the alleged failure to timely remove a fixation device does not transform

it into a foreign object; (3) a fixation device does not become a foreign object if inserted

in the wrong place in the body; (4) the failure to timely remove a fixation device is

generally akin to misdiagnosis, and improper placement of a fixation device is most

readily characterized as negligent medical treatment; and (5) chemical compounds,



fixation devices and prosthetic aids or devices are never to be classified as foreign

objects.

f. Parties Caption Of Action With Anonymous Plaintiff

Anonymous v Lerner, 124 A.D.3d 487, 998 N.Y.S.2d 619 (1st Dep’t 2015)

A trial court should exercise its discretion to limit the public nature of judicial

proceedings sparingly, and only unusual circumstances will warrant such a limitation.

When a plaintiff requests to proceed anonymously, the court must balance the plaintiff’s

privacy interest against the presumption in favor of open trials and against any potential

prejudice to defendant. Generally, a plaintiff’s interest in avoiding public humiliation

and embarrassment is not a sufficient reason to permit the plaintiff to proceed

anonymously. These principles are articulated in Anonymous.

CPLR 1015: Substitution Of Proper Party In Place Of Decedent

Lambert v Estren, 126 A.D.3d 942, 7 N.Y.S.3d 169 (2d Dep’t 2015)

CPLR 1015(a) provides that if a party dies, the court should order substitution of

the proper party. The motion for substitution may be made by the representative of the

decedent, or any party (CPLR 1021). The death of a party stays the action by operation

of law until the representative of the decedent is substituted as the proper party. The

Lambert Court lays out some basic (and important) principles on this subject: (1) in most

instances, a personal representative appointed by the Surrogate’s Court should be

substituted in the action to represent the decedent’s estate; (2) in the event no such

representative exists, Supreme Court may make the appropriate appointment; and (3) the



determination of whether to exercise its authority to appoint a representative lies in sound

discretion of Supreme Court.

g. Answer Adequately Pleading Affirmative Defenses Scholastic Inc. v Pace Plumbing Corp., 129 A.D.3d 75, 8 N.Y.S.3d 143 (1st Dep’t 2015) The affirmative defense of the statute of limitations is contained in CPLR

3211(a)(5). A defendant who wants to invoke that defense has two options: move to

dismiss before the defendant’s answering time expires, or plead the defense in an answer.

With respect to the latter option, only a properly pleaded statute of limitations defense

will preserve a defendant’s right to seek relief on it at some later point in the litigation,

i.e., on summary judgment or at trial. If the purported defense is not pleaded with

sufficient particularity, a court may conclude that it has been waived. However, in some

cases, the prejudice to the plaintiff from the defendant’s failure to properly plead the

statute of limitations “can be cured by allowing [the] defendant to amend its pleading and

then allowing [the] plaintiff to conduct disc[losure] on the statute of limitations issue.”

129 A.D.3d at 81, 8 N.Y.S.3d at 148 (internal citation omitted).

h. Venue Notwithstanding Special Venue Provisions, Court May Order Discretionary Change Of Venue In Actions Against Counties, Cities, Towns, Villages & School Districts Xhika v Rocky Point Union Free School District, 125 A.D.3d 646, 2 N.Y.S.3d 601 (2d Dep’t 2015)

CPLR 504(2) provides, in relevant part, that “the place of trial of all actions

against ... school districts ... shall be ... in the county in which such ... school district ... is

situated.” The purpose of CPLR 504, which applies not just to school districts but also to



counties, cities, towns, and villages, is to protect municipal entities and their employees

from the inconvenience of an alternative venue. Does the statute preclude a discretionary

change of venue to a non-mandated county? The Xhika Court says that it does not; the

court retains discretion to change venue in a given case upon a showing of special

circumstances. Based on the convenience of material witnesses and to serve the ends

justice, the Xhika Court changed the venue of plaintiff’s personal injury action against a

Suffolk County school district from Suffolk County to Kings County (the county in

which the plaintiff’s treating physicians practiced and the county in which a material

eyewitness resided).

N.B.: When a discretionary change of venue is sought for the convenience of material

witnesses (CPLR 510[3]), the party seeking the change of venue must provide the court

with the names and addresses of the non-party witnesses that are willing to testify at trial;

an account of the substance of those witnesses’ proposed testimony; and an explanation

as to how they would be unduly inconvenienced by appearing in the designated venue

(see Liere v State, 123 A.D.3d 1323, 999 N.Y.S.2d 581 [3d Dep’t 2014]). Detailed

affidavits (or, where permissible, affirmations [see CPLR 2106]) must be submitted by

the non-party witnesses in support of the party’s motion for a convenience-of-material-

witnesses change of venue (see Xhika, supra).

Failure To Timely Move For Change Of Venue As Of Right Does Not Bar Seeking Discretionary Relief

Aaron v Steele Law Firm, P.C., 127 A.D.3d 1385, 8 N.Y.S.3d 664 (3d Dep’t 2015) CPLR 511(a) and (b) set forth the procedure a defendant must follow to seek a

change of venue on the ground that the venue selected by the plaintiff is improper. The

defendant must serve, with or before its answer, a written demand on the plaintiff that the



venue be changed to the county that the defendant specifies as proper. The plaintiff has

five days after service of the demand to serve a written consent to change venue. If the

plaintiff does not serve a consent, the defendant must move to change venue within 15

days of service of the demand. Timing here is tight and sometimes tricky (see generally

Simon v Usher, 17 N.Y.3d 625, 934 N.Y.S.2d 362 [2011]). What happens if the plaintiff

selected an improper venue, but the defendant does not make its motion to change venue

within the 15-day window? Is the defendant still entitled to a change of venue as a matter

of right? “No,” says the Aaron Court. If a defendant fails to comply with CPLR 511(a)

and (b)’s procedures and time limits, the defendant is not entitled to have its motion to

change venue granted, even if the venue selected by the plaintiff was improper. Rather,

the defendant’s motion becomes one addressed to the discretion of the court (see CPLR

510 [listing grounds on which venue may be changed]).

i. Defaults Default Vacated Without Reasonable Excuse Or Affidavit of Merits ′′For Sufficient Reason And In The Interests Of Substantial Justice′′ Matter of County of Genesee (Butak), 124 A.D.3d 1330, 1 N.Y.S.2d 666 (4th Dep’t 2015)

Supreme Court did not abuse its discretion in granting respondent's motion pursuant to CPLR 5015(a)(1) seeking to vacate the underlying judgment of foreclosure (citation omitted). Although respondent did not establish either a reasonable excuse for the default or a meritorious defense to the foreclosure proceeding, the court did not abuse its discretion in granting the motion "for sufficient reason and in the interests of substantial justice" (citation omitted). Petitioner obtained the default judgment on February 24, 2014, and respondent moved to vacate it shortly thereafter, on March 4, 2014. In addition, respondent established both his ability to pay the taxes after the redemption period had ended and the lack of any prejudice to petitioner (citations omitted).



See, also, Matter Of County Of Genesee (Spicola), 125 A.D.3d 1477, 2 N.Y.S.3d 380 (4th Dep’t 2015)

Supreme Court did not abuse its discretion in granting respondent's renewed motion pursuant to CPLR 5015(a)(1) seeking to vacate the underlying judgment of foreclosure "for sufficient reason and in the interests of substantial justice" (citations omitted). Respondent moved to vacate the default judgment shortly after it was obtained and, in his renewed motion, "respondent established both his ability to pay the taxes after the redemption period had ended and the lack of any prejudice to petitioner" (citation omitted).

j. Intervention

CPLR 1013 &1014 Intervention

Mavente v Albany Medical Center Hospital, 126 A.D.3d 1090, 6 N.Y.S.3d 158 (3d Dep’t 2015) Intervention is a joinder procedure by which a nonparty seeks to become an

additional plaintiff or defendant in a pending action in which the judgment may adversely

affect the intervenor's interests” (Alexander, Practice Commentaries, McKinney’s Cons

Laws of NY, CPLR 1012, C1012:1). CPLR 1012 provides for invention as of right (1)

when a statute confers an absolute right to intervene; (2) when the representation of the

person's interest by the parties is or may be inadequate and the person is or may be bound

by the judgment; or (3) when the action involves the disposition or distribution of, or the

title or a claim for damages for injury to, property and the person may be affected

adversely by the judgment. CPLR 1013 allows for discretionary intervention “when the

person's claim or defense and the main action have a common question of law or fact. In

exercising its discretion, the court shall consider whether the intervention will unduly

delay the determination of the action or prejudice the substantial rights of any party.”

Health insurers sometimes seek to intervene -- as of right or by permission of the court --

in the personal injury actions of their insureds to protect their rights to recover sums paid



for health care provided to the insureds. Courts have taken a dim view of such requests

(see Siegel, New York Practice § 180 [Connors 5th ed]). The Court in Mavente declines

to permit an employee benefit plan, which the Court treats as an analogue of an insurer,

to intervene in the personal injury action of one of its members. Intervention as of right

(CPLR 1012) was not necessary because the member was adequately representing the

plan’s interests; intervention by permission (CPLR 1013) was not called for because it

could engender delay in the personal injury action and prejudice the parties to that action.



VI. Motion Practice

a. Cross-Motions; Notice Required Second Department, Citing Fried, Holds That A Notice Of Motion Not Required To Grant Relief Rappel v. Wincoma Homeowners Assoc., 125 A.D.3d 833, 4 N.Y.S.3d 276 (2d Dep’t 2015)

Contrary to the contention of the defendant third-party defendant Roger Ambrosio, Inc. (hereinafter Ambrosio), the Supreme Court did not improvidently exercise its discretion in entertaining the application of the defendant third-party plaintiff Wincoma Homeowners Association (hereinafter Wincoma), to, in effect, reinstate its third-party complaint against Ambrosio. Although Wincoma did not serve a notice of cross motion on Ambrosio, Ambrosio was aware of Wincoma's request for relief, opposed that request, and was not otherwise prejudiced by Wincoma's failure to serve a notice of motion. Under these circumstances, the Supreme Court did not err in entertaining the Wincoma application (citations omitted).

Court May Grant Relief Requested, An Extension of Time to Serve, By Non-Moving Party Without A Cross-Motion Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 970 N.Y.S.2d 260 (2d Dep’t 2013)

Generally, CPLR 2215 requires a non-moving party to make a formal cross motion to

obtain relief on another party’s motion; the non-moving party should, within a specified time,

serve a notice of cross motion, with or without supporting papers. The Fried court finds that if a

non-moving party makes a request for relief on another party’s motion but does not comply with

the requirements of CPLR 2215, a court may, in the exercise of its discretion, consider the

request. The factors the court should consider in deciding whether to consider a request for relief

that was not made by way of formal cross motion include: (1) the need to encourage careful,

forthright practice; (2) the interrelatedness of the relief requested by the nonmoving party and the

relief requested in the main motion; (3) the prominence in the opposition papers of the

affirmative request for relief and the movant's opportunity to address that request; and (4) the



interest of judicial economy.

The Fried court holds that Supreme Court providently exercised its discretion in

considering a defendant’s request for leave to serve a late answer made in its papers in

opposition to a plaintiff’s motion for a default judgment.

NB: Important benefits inure to the party that seeks relief by way of formal cross motion: the

party is entitled to have the cross motion decided, and the order deciding the cross motion will

(in most instances) be appealable as of right.

Two Trial Courts In Second Department Follow Lee In Holding That A Notice of Cross Motion Is Required to Grant Relief Agosta v. Fast Sys. Corp., 46 Misc.3d 1217(A), 9 N.Y.S.3d 592 (Sup. Ct., Suffolk Cty. 2015)

The court declines to consider FAST's argument that, because Agosta received legally sufficient consideration for the assignment of his invention, the plaintiffs' fourth cause of action, which seeks to void the parties' agreement for lack of consideration, should be dismissed. FAST did not include a request for such relief in its notice of cross motion. Accordingly, it is not properly before the court (citations omitted).

Wells Fargo Bank, N.A. v. Yanes, 2015 NY Slip Op 30357(U) (Sup. Ct., Suffolk County 2015)

Here, defendant has filed a cross motion seeking various forms of relief. The defendant's application to vacate her default pursuant to CPLR 3215 and to dismiss the action for lack of personal jurisdiction or for leave to serve and file a late answer, however, are not set forth in a notice of cross motion duly served pursuant to CPLR 2215. Appellate Division, Second Department case law has warned about the need for cross motions when seeking affirmative relief (citations and parentheticals omitted). In light of the foregoing, defendant's request for affirmative relief in the absence of a cross motion, renders defendant's request procedurally defective and is accordingly denied on that ground.



Plaintiff Seeking Extension Of Time To Serve When Confronted With Motion To Dismiss Must Cross-Move To Seek That Relief Lee v. Colley Group, 90 A.D.3d 1000, 934 N.Y.S.2d 831 (2d Dep’t 2011) The Second Department affirmed dismissal of the complaint for lack of personal

jurisdiction based upon plaintiff’s failure to effect service upon defendant. The court

noted that, contrary to plaintiff’s contention, plaintiff was required to serve a notice of

cross-motion in order to obtain the affirmative relief of an extension of time to serve the

summons with notice upon defendant pursuant to CPLR 306-b.

b. Affidavits Defective Translated Affidavit Corrected On Reply Taveras v Cayot Realty, Inc., 2015 NY Slip Op 01263 (2d Dep’t 2015)

The plaintiff allegedly was injured when he fell off the roof of a mobile home while renovating it. The plaintiff commenced this action to recover damages for personal injuries, alleging a violation of Labor Law § 240 (1), and subsequently moved for summary judgment on the issue of liability. The Supreme Court denied the motion. The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law based upon his affidavit and the pleadings submitted in support of his motion. To the extent that the plaintiff was required to submit his affidavit in Spanish, with a translation in English and an affidavit from a translator (citations omitted), those documents were submitted and properly considered in reply to the arguments raised in the defendant's opposition (citations omitted). Nevertheless, in opposition to the plaintiff's prima facie showing, the defendant raised a triable issue of fact as to whether the plaintiff was a volunteer and therefore not entitled to the protection of Labor Law § 240 (1) (citations omitted).



c. Motions To Dismiss

c. May A Defendant Submit Evidence In Support Of Motion To Dismiss For Failure To State A Cause Of Action?

Liberty Affordable Housing, Inc. v Maple Court Apartments, 125 A.D.3d 85, 998 N.Y.S.2d 543 (4th Dep’t 2015); Loreley Financial (Jersey) No. 3 Ltd v Citigroup Global Markets, Inc., 119 A.D.3d 136, 987 N.Y.S.2d 294 (1st Dep’t 2014); Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 A.D.3d 128, 980 N.Y.S.2d 21 (1st Dep’t 2014) CPLR 3211(a)(7) states that a defendant can seek dismissal of a complaint on the

ground that it fails to state a cause of action. Is a defendant moving for relief under that

statute limited to challenging the facial sufficiency of the pleading or can the defendant

submit evidence in support of its motion to establish that, on the actual facts, the plaintiff

has no cause of action? The prevailing view of the Court of Appeals seemed to be that a

defendant could submit evidence on the motion in an effort to demonstrate conclusively

that, regardless of the plaintiff=s allegations, he or she did not have a cause of action (see

e.g. Lawrence v Miller, 11 N.Y.3d 588, 873 N.Y.S.2d 517 [2008]; Guggenheimer v

Ginzberg, 43 N.Y.2d 268, 401 N.Y.S.2d 182 [1977]; Rovello v Orofino Realty Co., 40

N.Y.2d 633, 389 N.Y.S.2d 314 [1976]). But the Court recently seemed to indicate that a

CPLR 3211(a)(7) motion may only be used to test the facial sufficiency of a complaint

(Miglino v Bally Total Fitness of Greater New York, 20 N.Y.3d 342, 961 N.Y.S.2d 364

[2013]). In Basis Yield and Loreley Financial, the First Department offers lengthy, post-

Miglino opinions touching on the issue, concluding that a defendant can submit evidence

in support of a CPLR 3211(a)(7) motion. The Fourth Department concurs with that

assessment (see Liberty Affordable Housing, Inc.; but see Marston v General Electric

Co., 121 A.D.3d 1457, 995 N.Y.S.2d 646 [3d Dep’t 2014]). See also Higgitt, Potential

Change in Practice With CPLR 3211[a][7], Aug. 5, 2013 New York Law Journal at 4).



ii. Departments Split Whether CPLR 3211(a)(1) Dismissal May Based On E-Mail Documentary Evidence

Mendoza v Akerman Senterfitt, LLP, 128 A.D.3d 480, 10 N.Y.S.3d 18 (1st Dep’t 2015); Kolchins v Evolution Markets, Inc., 128 A.D.3d 47, 8 N.Y.S.3d 1 (1st Dep’t 2015); Art and Fashion Group Corp. v Cyclops Production, Inc., 120 A.D.3d 436, 992 NYS2d 7 (1st Dep’t 2014); Amsterdam Hospitality Group, LLC v Marshall-Alan Associates, Inc., 120 A.D.3d 431, 992 N.Y.S.2d 2 (1st Dep’t 2014); JBGR, LLC v. Chicago Title Ins. Co., 128 A.D.3d 900, 11 N.Y.S.3d 83 (2d Dep’t 2015); 25-01 Newkirk Ave., LLC v Everest National Insurance Co., 127 A.D.3d 850, 7 N.Y.S.3d 325 (2d Dep’t 2015); Zellner v Odyl, 117 A.D.3d 1040, 986 N.Y.S.2d 592 (2d Dep’t 2014) CPLR 3211(a)(1) allows a defendant to seek dismissal of a complaint based on a

defense “founded upon documentary evidence.” The statute does not define the phrase

“documentary evidence”; however, the courts have held that a paper qualifies as

“documentary evidence” if – and only if – it satisfies the following criteria: (1) the paper

is unambiguous; (2) it is of undeniable authenticity; and (3) its contents are essentially

undeniable (see, Fontanetta v Doe, 73 AD3d 78, 898 NYS2d 569 (2d Dept 2010). Can

an e-mail constitute “documentary evidence”? It can, states the First Department in a

series of decisions on the subject, provided the e-mail satisfies the standard criteria

(unambiguous, authentic, and undeniable) (Mendoza; Kolchins;Art and Fashion Group

Corp.; Amsterdam Hospitality Group, LLC). The Second Department has reached the

contrary conclusion (JBGR, LLC; 25-01 Newkirk Ave., LLC; Zellner).



d. Motions for Summary Judgment

i. Brill Redux Brill Issues Persist Bennett v St. John’s Home & St. John’s Health Care Corp., 128 A.D.3d 1428, 8 N.Y.S.3d 774 (4th Dep’t 2015); Connolly v 129 E. 69th Street Corp., 127 A.D.3d 617, 7 N.Y.S.3d 889 (1st Dep’t 2015) CPLR 3212(a) provides that “[a]ny party may move for summary judgment in any

action, after issue has been joined; provided however, that the court may set a date after

which no such motion may be made, such date being no earlier than thirty days after the

filing of the note of issue. If no such date is set by the court, such motion shall be made

no later than one hundred twenty days after the filing of the note of issue, except with

leave of court on good cause shown.” In Brill v City of New York, 2 N.Y.3d 648, 781

N.Y.S.2d 261 (2004), the Court of Appeals gave the “good cause” clause of CPLR

3212(a) a rigid construction: good cause “requires a showing of good cause for the delay

in making the motion—a satisfactory explanation for the untimeliness—rather than

simply permitting meritorious, nonprejudicial filings, however tardy” (2 N.Y.3d at 652,

781 N.Y.S.2d at 264). Case law is legion interpreting and applying Brill. Some new

entries on the Brill scene: Bennett (so-ordered stipulation can extend time within which

to move for summary judgment), and Connolly (although motion is generally made when

served [CPLR 2211], summary judgment movant must file its motion before the deadline

if the court so requires; movant’s failure to file summary judgment motion by deadline

results in motion being untimely even if movant served motion by deadline).



Trial Court Had Discretion to Enforce Stipulation Between Parties Extending 120 Deadline; Timing Requirement Not “A Matter Of Public Policy That May Not Be Affirmatively Waived By A Party”

Bennett v. St. John’s Home & St. John’s Health Care Corp., 128 A.D.3d 1428, 8 N.Y.S.3d 774 (4th Dep’t 2015)

Memorandum: Plaintiff, individually and as the administrator of the estate of his wife, Virginia R. Bennett (decedent), commenced this action pursuant to Public Health Law § 2801-d, alleging that decedent was deprived of certain rights and benefits derived from federal and state regulations while she was a patient in a nursing home operated by defendants. Supreme Court granted defendants’ motion for summary judgment dismissing the complaint, and plaintiff appeals. Plaintiff contends that the motion should have been denied as untimely because it was made more than 120 days after the filing of the note of issue without a showing of good cause for the delay (citation omitted). Plaintiff waived that contention, however, by expressly consenting to the timing of the motion before it was made (citation omitted). While we agree with our dissenting colleague that the court was not required to accept the express stipulation of the parties to extend the 120-day deadline in CPLR 3212, we note that the court in fact did so in advance of the motion (citation omitted). Moreover, unlike our dissenting colleague, we do not view the timing requirements applicable to motions for summary judgment as a matter of public policy that may not be affirmatively waived by a party (citation omitted). With respect to the merits, we conclude that defendants established as a matter of law that they provided appropriate care and treatment to decedent and did not violate any of the various federal and state regulations identified by plaintiff as the bases for this action, and plaintiff failed to raise a triable issue of fact in opposition (citation omitted).

ii. Proof on the Motion Self-Serving Evidence On Matter Within Exclusive Knowledge Of Movant May Not Serve As Basis For Summary Judgment Quiroz v 176 North Main, LLC, 125 A.D.3d 628, 3 N.Y.S.3d 103 (2d Dep’t 2015) The party seeking summary judgment must make a prima facie showing of

entitlement to judgment as a matter of law. Often the movant will rely on his or her

deposition testimony or affidavit in an effort to show that no triable issue of fact exists in



the action. Can a movant’s self-serving deposition testimony or affidavit serve as the

basis for granting summary judgment to the movant? It all depends on whether the

deposition testimony or affidavit pertains to matters exclusively within the movant’s

knowledge. “[S]tatements of an interested party [that] refer to matters exclusively within

that party’s knowledge create an issue of credibility [that] should not be decided by the

court but should be left for the trier of facts” (125 A.D.3d at 631, 3 NYS3d at 106

[internal quotation marks and brackets omitted]).

VII. Disclosure

a. Scope of Disclosure

In Three-Two Decision First Department Holds Trial Court Improperly Restricted Reach of “Material & Necessary” In Denying Production of Records in Texas Action; Public Availability of Documents Did Not Extinguish Disclosure Obligation

In the Matter of Steam Pipe Explosion at 41st Street and Lexington Avenue, 127 A.D.3d 554, 8 N.Y.S.3d 88 (1st Dep’t 2015) CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material

and necessary in the prosecution or defense of an action.” The Court of Appeals has

directed that the phrase “material and necessary” is “to be interpreted liberally to require

disclosure … of any facts bearing on the controversy” (Allen v Crowell-Collier Publicity

Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 452 [1968]). In Matter of Steam Pipe

Explosion, the defendants/third-party plaintiffs sought documents relating to a prior

incident involving the defendant/third-party defendant. Supreme Court denied

defendants/third-party plaintiffs’ motion to compel disclosure of the documents. The

First Department reversed, stating that “[t]he motion court applied too harsh a standard in

determining that documents concerning the prior … incident are not discoverable. We are

not concerned with the ultimate admissibility of the evidence at trial, but with the



discovery of information concerning the prior incident, as to which a more liberal

standard applies. The motion court's reliance on cases involving the exclusion of

testimony or the evaluation of evidence submitted in opposition to a defendant's motion

for summary judgment underscores that it applied a more restrictive standard in

evaluating the discoverability of evidence concerning [the defendant/third-party

defendant] and other incidents” (127 AD3d at 555-556, 8 NYS3d at 89-90 [internal

citations omitted]). The defendant/third-party defendant’s excess application of leak

sealant was a contributing factor in both the steam pipe explosion giving rise to the

litigation and a prior incident at a Texas refinery, and the defendants/third-party plaintiffs

alleged that, in the New York incident giving rise to this litigation, excess application of

sealant caused blockages of steam traps, preventing the removal of condensed steam from

inside the steam main, and leading to a condition that caused the main to rupture.

Because the precipitating causes and the circumstances surrounding both incidents were

sufficiently similar, disclosure regarding the prior incident was warranted.

N.B.: The Court in Matter of Steam Pipe Explosion also held that defendants/third-party

plaintiffs were entitled to disclosure of all matter material and necessary to their claims

and defenses regardless of whether any such matter was publically available (127 A.D.3d

at 556, 8 N.Y.S.3d at 90 [defendants/third-party plaintiffs’ “independent efforts to obtain

publicly-available documents, whether through record searches or Freedom of

Information Law requests, do not extinguish [defendant/]third-party defendant's

obligations to comply with the CPLR.”]; see Rawlings v St. Joseph’s Hospital Health

Center, 108 A.D.3d 1191, 969 N.Y.S.2d 687 [3d Dep’t 2013]).



b. Privilege/Confidential Information

i. Medical Privilege & Claim Of Total Disability Claim Of Total Disability Results In Waiver Of Entire Medical History; Additional IME & Medical Testing Ordered McLeod v. Metropolitan Transp. Auth., 47 Misc. 3d 1219(A), 2015 NY Slip Op 50705(U) (Sup. Ct., New York County 2015)

In this action alleging violations of the Labor Law, defendants move for an order to compel plaintiff: (1) to provide authorizations for the release of medical records; (2) to appear for a further deposition related to medical records sought in this motion; (3) to appear for a further medical examination before a vascular surgeon for a pulse volume recording (PVR) test and duplex examination; and (4) to pay the fees associated with the further medical examination. Defendants also seek an order of preclusion against plaintiff from offering evidence at trial of any injuries due to plaintiff's refusal to provide authorizations and to submit to the PVR test and duplex examination. The dispute over the authorizations that plaintiff must provide presents an issue which the Appellate Divisions have treated differently: whether a plaintiff has waived the physician-patient privilege as to his or her entire medical history by asserting claims for loss of enjoyment of life, future lost earnings and total disability due to permanent physical injuries.

* * * Even if the Court were to assume, for the sake of argument, that plaintiff's claims for loss of enjoyment of life and future lost earnings did not amount to waiver of the physician-patient privilege as to his entire medical history, plaintiff also alleges that he has been "totally disabled" and "totally incapacitated" since the date of his accident. (Citation omitted). By pleading "total disability", plaintiff has affirmatively placed at issue his physical ability to work in any capacity. (Citations and parentheticals omitted). Defendants are entitled to discovery to determine the extent, if any, that plaintiff's inability to work in any capacity is attributable to causes or circumstances other than the alleged accident. (Citation omitted). Virtually anything in plaintiff's entire medical history might be relevant, or reasonably calculated to lead to admissible evidence as to the plaintiff's inability to work in any capacity. Indeed, plaintiff testified at his deposition that his doctors told him that he should consider retiring after he had suffered a heart attack in 2007. (Citation omitted).



Therefore, by pleading "total disability", plaintiff has waived the physician-patient privilege as to his entire medical history. In light of the Court's determination, the Court does not reach defendants' remaining argument that plaintiff placed his entire medical history at issue by pleading "broad allegations" of physical injury. (Citations omitted). E. Plaintiff has waived the physician-patient privilege as to his entire medical history, because virtually anything in plaintiff's entire medical history might be relevant, or reasonably calculated to lead to admissible evidence as to the plaintiff's life expectancy, work life expectancy, and inability to work in any capacity. However, that is not to say that plaintiff's entire medical history is discoverable. It is well-settled that once the physician-patient privilege is waived "for a particular purpose, the privilege was destroyed for all purposes." (Citation omitted) Nevertheless, courts have denied discovery of medical records that were once privileged if the plaintiff withdraws those injuries or claims that initially triggered waiver of the privilege when they were placed at issue. (Citations and parentheticals omitted). Here, plaintiff has not withdrawn his claims for loss of enjoyment of life, future lost earnings and total disability. Second, Public Health Law § 2785 permits disclosure of confidential HIV-related information in a civil proceeding only upon an application that shows "compelling need" for such disclosure. (Citations omitted). In addition, "records concerning substance abuse treatment are confidential and are not subject to disclosure unless certain requirements are met (Citations omitted). There is no indication that HIV-related information or records of substance abuse treatment exist or are being sought here. Third, defendants are not entitled to authorizations for the release of the entire medical file from every physician or hospital that ever treated plaintiff since birth. "Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party." (Citations and parenthetical omitted). It would be unduly burdensome upon the plaintiff to track down every physician or hospital that treated plaintiff since birth. Abdur-Rahman v Pollari (citation omitted) is instructive. Abdur-Rahman was an action for wrongful death, and the defendants moved to compel the plaintiff, the estate representative, to provide records of treatment of the decedent by any and all medical providers within 10 years of his death. The Appellate Division, First Department, stated, "It is well settled that, in determining the types of material discoverable by a party to an action, whether something is material and necessary'



under CPLR 3101 (a) is to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.' Under that broad standard, defendants are entitled to records shedding light on decedent's health at the time of his death and prior thereto. One of the factors in determining fair and just compensation is the decedent's health and life expectancy at the time of death. Accordingly, it is appropriate for defendants to have access to records reflecting decedent's health condition in the months and years prior to his death. At the same time, plaintiff is entitled to some reasonable restriction on the scope of the records. Defendants have made no showing why 10 years of records are material and necessary to the defense of this action. A limitation in scope to records preceding decedent's death by five years is far more reasonable under the circumstances." (Citation omitted). Thus, "the defendants' request that the authorization to obtain these records be unrestricted as to date was not reasonable." (Citation and parenthetical omitted). Authorizations should be reasonably limited to the records of treatment that occurred during the five-year period prior to the date of this accident, June 14, 2010, and up to the present time. (Citations omitted). Defendants' request for "any other primary care physician that has treated plaintiff in the last 15 years other than Dr. Sheridan or Dr. Nozad", in their demand dated March 20, 2013, is denied. Plaintiff testified at his deposition that Dr. Nozad is "my family doctor" since 2007 (citation omittd), and that, for three years prior to Dr. Nozad (i.e., from 2004), his family doctor was Dr. Sheridan. (citation omitted). Defendants have not identified any particular primary physician for whom authorizations are sought, whose treatment falls within the five-year period before June 14, 2010.

* * * III. Defendants seek an order compelling plaintiff to submit to a further medical examination before Dr. Elizabeth Harrington, so that Dr. Harrington can perform a pulse volume recording (PVR) test and a duplex examination. As plaintiff's counsel indicates, "an examination should not be required if it presents the possibility of danger to [his] life or health. (Citation omitted). Thus, a plaintiff may not be compelled to undergo objective testing procedures when it is established that the tests are invasive, painful and harmful to the person's health. (Citation omitted). The plaintiff bears the initial burden of showing that the proposed test is prima facie potentially dangerous, and once the showing is made, the burden then shifts to the party seeking the test to demonstrate its safety. (Citation omitted).



Plaintiff does not assert that the PVR test and duplex examination are invasive, or that these tests present the possibility of danger to plaintiff's life or health. Rather, plaintiff's attorney indicates that she mistakenly believed that the PVR tests and duplex examination were invasive procedures. (Citation omitted). Plaintiff's attorney argues that defendants waived their right to conduct the PVR test and duplex examination because Dr. Harrington did not explain their nature and necessity to plaintiff's attorney, and that Dr. Harrington did not contact defendants' attorney so that the parties' counsel could confer with Dr. Harrington. (Citation omitted). Defendants have demonstrated entitlement to a PVR test and duplex examination of plaintiff. The bill of particulars alleges that the alleged accident caused "exacerbation of prior asymptomatic vascular condition", thereby placing this "vascular condition" at issue. Plaintiff did not meet his prima facie burden of showing that the PVR test and duplex examination were invasive, or harmful to plaintiff's life or health. Meanwhile, Dr. Harrington states, in relevant part: "During the course of my examination I sought to perform a pulse volume recording (PVR) and a duplex examination, both of which are non-invasive tests of arterial circulation (i.e., blood flow). Plaintiff's counsel was present during my entire examination and would not allow me to perform either a PVR or duplex examination. While I was able to examine plaintiff's lower extreme circulation, the tests that I sought to perform are more accurate and allow a vascular surgeon to obtain precise information with respect to circulation. A PVR is a test that shows the arterial flow in all levels in the leg, and provides information with respect to whether there are any chronic blockages within the leg, and also provides information assess [sic] plaintiff's response to the surgery that was performed. The PVR test is similar to a blood pressure test. The entire PVR test lasts approximately 20 minutes. A duplex examination is performed to determine if there are any calcifications with the arteries or if there is atherosclerotic disease (a build-up of calcium and/or cholesterol deposits within the legs). The duplex examination is performed with a Doppler and uses sonogram imaging to depict arteries and veins (i.e., this is a hand held probe that is connected to a machine which has a screen that transmits in image). A duplex examination takes approximately 40 minutes. A PVR test and a duplex examination are routine tests performed by vascular surgeons to evaluate, assess, treat, and/or diagnose patients. I have been able to assess some of plaintiff's vascular conditions but to perform a complete and meaningful examination of plaintiff, a duplex examination and a PVR tests are necessary." (Citation omitted). Dr. Harrington's affirmation amply establishes that further medical evaluation is required.



Plaintiff's argument of waiver is without merit. Appellate Pronouncements On When A Total Waiver Occurs

See, Reading v Fabiano, 126 AD3d 1523, 6 NYS3d 360 (4th Dept, March 27, 2015); Schlau v City of Buffalo, 125 AD3d 1546, 4 NYS3d 450 (4th Dept, Feb. 13, 2015); Gumbs v Flushing Town Center III, L.P., 114 AD3d 573, 981 NYS2d 394 (1st Dept, Feb. 25, 2014); Montalto v Heckler, 113 AD3d 741, 978 NYS2d 891 (2d Dept, Jan. 22, 2014); Bravo v Vargas, 113 AD3d 577, 978 NYS2d 313 (2d Dept, Jan. 8, 2014)

As noted above, CPLR 3101(a) provides that “[t]here shall be full disclosure of all

matter material and necessary in the prosecution or defense of an action.” But privilege

law may prohibit disclosure that would otherwise occur under CPLR 3101(a). One of the

most frequently-invoked privileges is the physician-patient privilege, which provides that

“a person authorized to practice medicine, registered professional nursing, licensed

practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any

information which he [or she] acquired in attending a patient in a professional capacity,

and which was necessary to enable him [or her] to act in that capacity” (CPLR 4504[a]).

The “privilege is a rule of evidence that protects communications and medical records”

(People v Rivera, 25 NY3d 256, 261, 11 NYS3d 509, 512 [2015]). But, “by bringing or

defending a personal injury action in which mental or physical condition is affirmatively

put in issue, a party waives the privilege”; the waiver is limited to the conditions

affirmatively placed in controversy and conditions related thereto (see Koump v Smith,

25 NY2d 287, 294, 303 NYS2d 858, 864 [1969]). Sometimes a tort plaintiff, by virtue of

his or her allegations, places his or her entire medical condition in controversy, allowing

the defendant to obtain broad disclosure regarding the plaintiff’s medical history. When

has a plaintiff waived entirely his or her physician-patient privilege? No bright-line test

exists to answer this question, but here are some relevant considerations: Did the plaintiff



make “broad” allegations of injuries; did the plaintiff allege an injury to a discreet body

part or parts, or did plaintiff allege an injury to a body system or function? Did the

plaintiff allege future lost earnings? Did the plaintiff allege a permanent injury? Did the

plaintiff claim loss of enjoyment of life?

ii. Disclosure In Lead Paint Action Of Family Medical & Educational History

Perez v Fleischer, 122 A.D.3d 1157, 997 N.Y.S.2d 773 (3d Dep’t 2014) CPLR 3101(a)(4) allows a party to obtain information relevant to an action from a

non-party. In a lead paint personal injury action, evidence concerning the medical and

educational history of the plaintiff’s family members may be relevant on the issue of

causation, i.e., were the plaintiff’s injuries caused, in whole or in part, by factors other

than lead poisoning. A defendant seeking such evidence must demonstrate a predicate

for its disclosure; the defendant has to show that the desired information is material and

necessary to determining the causes and contributing factors related to the plaintiff’s

condition. Even assuming that the defendant demonstrates the proper predicate,

disclosure may be limited by the physician-patient privilege (see CPLR 4504). In Perez,

supra, the defendants, the owners of the property on which the plaintiff was allegedly

exposed to lead paint, moved to compel disclosure of academic and medical records of

the plaintiff’s siblings and mother, and to compel the mother to take an IQ test. Supreme

Court granted the motion to the extent of requiring (1) the disclosure of the academic and

medical records of the mother, (2) the mother to appear for an IQ test, and (3) the

production of the siblings’ academic and medical records for in camera review. The

Third Department modified the order to limit the disclosure. First, the Court determined

that the medical records of the mother and the siblings were not discoverable because



they neither waived the physician-patient privilege nor consented to disclosure of the

records. Second, the Court concluded that the educational records of the siblings and the

mother were private but not privileged, and that, given the defendants’ expert evidence

indicating that those records were material and necessary to determine whether other

factors caused the plaintiff’s conditions, in camera inspection of those records was

warranted. Third, the Court found that the mother did not have to submit to a IQ test.

Although the defendants’ expert evidence indicated that the mother’s IQ may be relevant

on the issue of the cause of the plaintiff’s diminished mental capacity, the private and

personal nature of that information and the potential delay of the resolution of the action

engendered by the administration of the IQ test militated against compelling the mother

to submit to it.

c. Depositions

Protective Order Should Have Been Granted To Conduct Deposition Of Plaintiff In China Electronically Feng Wang v A & W Travel, Inc., 2015 NY Slip Op 06312 (2d Dep’t 2015)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated May 2, 2013, as granted those branches of the separate motions of the defendants third-party plaintiffs Jama M. Farah, Give Me the Freight, LLC, and Give Me the Freight, LLC, doing business as GTF, and the third-party defendant, Green Line Trucking, Inc., which were pursuant to CPLR 3126 to preclude him from testifying at trial on the issue of damages, to the extent of conditionally precluding him from testifying at trial ′′unless within thirty days plaintiff appears for deposition and IME [Independent Medical Examination] within the State of NY or stipulates to pay costs of business class airfare and accommodations for defendant’s counsel and defendant’s doctor to conduct the deposition and IME in China,′′ denied that branch of his cross motion which was pursuant to CPLR 3103 for a protective order directing that his deposition be conducted by remote electronic means and, in effect, denied that branch of his amended cross motion which was pursuant to CPLR 3117(a)(3) for leave to employ a video transcription of his deposition testimony at trial in lieu of appearing in person.



ORDERED that the order is modified, on the facts and in the exercise of discretion, by (1) deleting therefrom the words ′′unless within thirty days the plaintiff appears for deposition and IME within the State of NY or stipulates to pay costs of business class airfare and accommodations for defendant’s counsel and defendant’s doctor to conduct the deposition and IME in China,′′ and substituting therefor the words ′′unless the plaintiff pays the reasonable cost of airfare and accommodations for the defendants’ doctor to conduct the independent medical examination in China,′′ and (2) deleting the provisions therefrom denying that branch of the plaintiff’s cross motion which was pursuant to CPLR 3103 for a protective order directing that his deposition be conducted by remote electronic means and, in effect, denying that branch of his amended cross motion which was pursuant to CPLR 3117(a)(3), in effect, for leave to employ a video transcription of his deposition testimony at trial in lieu of appearing in person, and substituting therefor provisions granting those branches of the plaintiff’s cross motion and amended cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the defendants third-party plaintiffs and the third-party defendant. The plaintiff commenced this action against various defendants to recover damages for personal injuries he allegedly sustained in an accident on December 16, 2007, while he was a passenger on a bus. The plaintiff appeared for a deposition held on June 9, 2010. The plaintiff’s deposition was not completed on that date and it was to be continued at a later time. Prior to the continuation of his deposition, the plaintiff, who had been living in the United States since 2000 on his own while his wife and child remained in China, moved back to China, allegedly due to his inability to care for himself. The defendants third-party plaintiffs Jama M. Farah, Give Me the Freight, LLC, and Give Me the Freight, LLC, doing businessasGTF, moved,andthethird-partydefendant, Green Line Trucking, Inc., separately moved, pursuant to CPLR 3126 to dismiss the complaint for the plaintiff’s failure to appear for the continuation of his deposition or to appear for an independent medical examination, or, in the alternative, to compel the plaintiff to appear or preclude him from testifying as to damages at the time of trial. The plaintiff cross-moved, inter alia, pursuant to CPLR 3103 for a protective order directing that his deposition be conducted by remote electronic means and, in an amended notice of cross motion, for an order, among other things, pursuant to CPLR 3117(a)(3) for leave to employ a video transcription of his deposition testimony at trial in lieu of appearing in person due to his inability to obtain a visa to enter the United States. The Supreme Court granted those branches of the motions which were to preclude the plaintiff from testifying at trial on the issue of damages to the extent of conditionally precluding him from testifying at trial unless he appeared within 30 days for a deposition and independent medical examination in New York or stipulated to pay for business class airfare and accommodations for the defendants’ attorneys and independent medical examination doctor to conduct the



deposition and the independent medical examination in China. The Supreme Court also denied that branch of the plaintiff’s cross motion which was pursuant to CPLR 3103 for a protective order directing that his deposition be conducted by remote electronic means and, in effect, denied that branch of his amended cross motion which was pursuant to CPLR 3117(a)(3) for leave to employ a video transcription of his deposition testimony at trial. The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s cross motion which was pursuant to CPLR 3103(a) for a protective order directing that his deposition be conducted by remote electronic means. ′′Generally, when a party to the action is to be deposed, the deposition should take place within the county . . . where the action is pending’′′ (citation omitted). ′′An exception to this rule is where a party demonstrates that examination in that county would cause undue hardship′′ (citation omitted). Here, in light of the evidence that the plaintiff’s applications for a visa to return to the United States had been denied, and the evidence establishing that he presently was ineligible to be admitted to the United States, the plaintiff demonstrated that traveling from China to the United States for his deposition or independent medical examination would cause undue hardship (citation omitted). Further, the Supreme Court erred in, in effect, denying that branch of the plaintiff’s amended cross motion which was pursuant to CPLR 3117(a)(3) for leave to employ a video transcription of his deposition testimony at trial in lieu of appearing at trial to give testimony. The plaintiff met the criteria set forth in CPLR 3117(a)(3)(ii), (iv), and (v) (citation omitted). In light of the foregoing, we find that the Supreme Court improvidently exercised its discretion in precluding the plaintiff from testifying at trial unless, within a certain period of time, he appeared for a deposition and an independent medical examination in New York or stipulated to pay for business class airfare and accommodations for the defendants’ attorneys and independent medical examination doctor to conduct the deposition and the independent medical examination in China. Under the circumstances presented, the plaintiff should not be required to pay business class airfare and accommodations for the defendants’ doctor. We note, however, that the plaintiff has consented to pay the reasonable cost of airfare and accommodations for the defendants’ doctor to conduct the independent medical examination in China.



Control Of Separate Entity Not Demonstrated; Designation of Corporate Witness Required New GPC Inc. v Kaieteur Newspaper Inc., 124 A.D.3d 437, 1 N.Y.S.3d 57 (1st Dep’t 2015)

Plaintiff failed to show that the editor of a ′′sister′′ newspaper of defendant, which has no common ownership, but which appears to dictate content for defendant paper, is under the control of defendant so as to require defendant to produce him (citation omitted). Nevertheless, as recognized by the motion court, plaintiff may seek the editor’s deposition through a properly issued deposition subpoena. Plaintiff also makes no substantive argument as to why it should not be required to designate deponents of defendant corporation, rather than simply demand depositions of ′′any′′ employees, directors or officers with knowledge of the facts (citation omitted).

d. Physical & Mental Examinations

Presence of Plaintiff’s Representative at IME Permitted; Questions Blocked Properly Answered By Affidaivt

Guerra v. McBean, 127 A.D.3d 462, 4 N.Y.S.3d 526 (1st Dep’t 2015)

Defendants failed to establish that plaintiffs’ representative’s presence at their physical examinations deprived defendants of the ability to conduct meaningful examinations (citations and parentheticals omitted). Defendants’ expert’s lengthy reports relating to the examinations reflect that he was able to perform range of motion and other testing and issue unequivocal diagnoses, and gave no indication that further examinations were required (citations and parentheticals omitted). To the limited extent that questions were not answered during the examinations, the court appropriately directed plaintiffs to provide affidavits as to the missing responses.

e. Notice to Admit

Error to Deny Party Request to Withdraw Admissions

Altman v. Kelly, 128 A.D.3d 741, --- N.Y.S.3d --- (2d Dep’t 2015)

In an action to recover damages for personal injuries, the defendant Islip Pizza Restaurant, Inc., doing business as Gino’s Tuscany Restaurant, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated October 16, 2013, as granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against it, and denied its cross motion pursuant to CPLR 3123(b) for leave to withdraw the admissions contained in its response to the plaintiff’s notice to admit.



ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the defendant Islip Pizza Restaurant, Inc., doing business as Gino’s Tuscany Restaurant, is denied without prejudice to renewal upon completion of discovery, and the cross motion of the defendant Islip Pizza Restaurant, Inc., doing business as Gino’s Tuscany Restaurant, for leave to withdraw the admissions contained in its response to the plaintiff’s notice to admit is granted. This action arises out of a motor vehicle accident between the plaintiff’s motorcycle and a motor vehicle owned and operated by the individual defendant, Steven Kelly. The plaintiff commenced this action against Kelly and Kelly’s employer, Islip Pizza Restaurant, Inc., doing business as Gino’s Tuscany Restaurant (hereinafter Islip Pizza). The plaintiff alleged that Islip Pizza was liable for Kelly’s negligence under the doctrine of respondeat superior. As relevant to this appeal, in a notice to admit pursuant to CPLR 3123, the plaintiff s ought Islip Pizza’s admission that, at the time of the collision, Kelly was ′′in the course of his employment′′ with Islip Pizza, was ′′acting in the scope of his employment′′ with Islip Pizza, and was ′′acting in furtherance of the business activities of′′ Islip Pizza. Islip Pizza timely responded to the plaintiff’s notice, and it admitted each of the listed items. Thereafter, the plaintiff moved for summary judgment on the issue of liability against the defendants. Islip Pizza opposed the motion, and cross-moved for leave to withdraw its admissions, contending, among other things, that the notice to admit was improper inasmuch as it sought admissions of ultimate conclusions in the action. Islip Pizza also submitted evidence tending to support its contention that Kelly was not, at the time of the accident, acting in the course of his employment with Islip Pizza, in the scope of that employment, or in furtherance of Islip Pizza’s business. The Supreme Court denied Islip Pizza’s cross motion to withdraw its admissions and granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against it. Islip Pizza appeals from so much of the order as denied its cross motion and granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against it. Under CPLR 3123(a), a party may serve upon another party a written request that it admit, among other things, ′′the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry′′ (citation omitted). The legislative policy underlying CPLR 3123(a) is to promote efficiency in the litigation process by ′′eliminat[ing] from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to



admit which goes to the heart of the matters at issue is improper′′ (citations omitted). Furthermore, under CPLR 3123(b), a court may at any time permit a party to amend or withdraw any admission ′′on such terms as may be just′′ (citations omitted). Here, Islip Pizza’s liability depends entirely on whether it is liable for Kelly’s acts under the doctrine of respondeat superior. The plaintiff’s requests to admit thus were addressed to the core legal and factual issues pertaining to Islip Pizza (citations omitted). Moreover, the facts underlying the determination of whether Islip Pizza is liable for Kelly’s alleged negligence may be obtained through discovery, including depositions of the defendants (citations omitted). Under the circumstances, Islip Pizza’s cross motion to withdraw its admissions should have been granted (citations omitted). In the absence of Islip Pizza’s admissions, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law against Islip Pizza on the issue of liability (citation omitted). Accordingly, that branch of the plaintiff’s motion which sought summary judgment against Islip Pizza on the issue of liability must be denied, without prejudice to renewal after the completion of discovery (citation omitted).

Trial Court Properly Denied Plaintiff’s Preclusion Request Based Upon Unanswered Notice to Admit

William v. City of New York, 125 A.D.3d 767, 999 N.Y.S.2d 898 (2d Dep’t 2015)

′′The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial′′ (citations omitted). Contrary to the plaintiff’s contention, his notice to admit improperly sought the defendants’ admissions concerning a matter that went to the heart of the controversy in this case (citations omitted). Since admissions sought were improper, the defendants’ failure to timely respond to the subject notice should not be deemed an admission of the matters stated therein (citation omitted). Accordingly, the Supreme Court properly denied the plaintiff’s motion to preclude the defendants from offering testimony regarding the matters as to which admissions were sought. Under the circumstances of this case, reversal is not warranted on the basis of the interrogatories submitted to the jury (citations omitted).



f. Penalties for Failure to Disclose

CPLR 3126 Disclosure Sanction, Including Striking Pleading & Entering Default Judgment, For Fraud on Court Affirmed by Court of Appeals CDR Creances S.A.S. v. Cohen, 23 N.Y.3d 307, 15 N.E.3d 274, 991 N.Y.S.2d 519 (2014)

In this appeal we conclude that where a court finds, by clear and convincing evidence, conduct that constitutes fraud on the court, the court may impose sanctions including, as in this case, striking pleadings and entering default judgment against the offending parties to ensure the continuing integrity of our judicial system. With one exception, the record on this appeal supports such sanctions, and we therefore affirm, in part, the Appellate Division (citation omitted).

* * *

At the August 2010 sentencing, the District Court concluded that Maurice and Leon Cohen had perpetrated fraud on Supreme Court in New York. The District Court found

Maurice and Leon Cohen's criminal activity "spanned the better part of a decade or more, involved numerous fictitious entities, an elaborate web of shell corporations, and heavy handed [treatment] of a number [of] less sophisticated financially dependant employees

in the scheme," and sentenced both Maurice and Leon Cohen to 120 months in federal prison. Shortly after defendants' sentencing, plaintiff again moved pursuant to CPLR 3126 to strike defendants' pleadings and for a default judgment in the consolidated 2003 and 2006 actions, alleging all of the defendants perpetrated fraud on the court. Supreme Court held a full evidentiary hearing at which the Habibs testified to the Cohens' carefully orchestrated scheme of lies and evidence fabrication. Repeating much of their federal testimony, they recounted a meeting held prior to their depositions in New York, attended by defendants Maurice Cohen, Leon Cohen, Robert Maraboeuf and Allegria Aich, during which the Cohens instructed them and the other defendants to provide false and misleading testimony. At the meeting the Cohens provided the Habibs with a written "script", which plaintiff introduced into evidence at the hearing, which was intended to provide the Habibs with false answers to be given to their attorney and at their depositions. The Cohens told the Habibs to deny knowing both Maurice and Leon, to present themselves as representatives of the entities the Cohens' denied controlling, and to give false testimony at their depositions that would corroborate false testimony of defendants Aich and Maraboeuf. According to the Habibs, the Cohens also created fictitious characters, Francis Lavalle and Jim Cox, to further the Cohens' lies and conceal their actions. Joelle Habib was instructed to testify that Francis Lavalle hired her and that Jim Cox controlled another entity the Cohens denied ownership of. Aich had also falsely testified that Lavalle



controlled the New York Flatotel and Cox controlled Blue Ocean. The Habibs further testified that Aich and Maraboeuf repeatedly perjured themselves in their depositions in an effort to conceal Maurice and Leon Cohen's involvement in the conversion of proceeds from the loan agreement and the sale of the New York Flatotel. Based on the testimony and plaintiff's exhibits, Supreme Court determined, by clear and convincing evidence, that defendants had perpetrated a fraud on the court and granted plaintiff's motion, basing its authority on the court's inherent power to take action to preserve the integrity of the judicial process. Supreme Court found, inter alia, Maurice and Leon Cohen had suborned perjury by providing the Habibs with a "script" containing false answers to be given to their attorneys and at their depositions; created Francis Lavalle and Jim Cox — wholly fictitious individuals — and intentionally implicated them as controlling the defendant corporations; forged the affidavits of others in an effort to disclaim ownership of the defendant corporations; secretly paid each of their co-defendants legal fees through corporate entities in an effort to financially coerce their false testimony; and intentionally and pervasively ignored court ordered discovery obligations. Supreme Court also found that defendants Maraboeuf and Aich intentionally lied at their depositions, denying a relationship with Maurice and Leon Cohen. Moreover, defendant Aich urged Maraboeuf and the Habibs to lie in accordance with the scripts they were given, and to falsely state that they paid their own legal fees. Supreme Court struck defendants' answers and entered default judgment. The Appellate Division affirmed, with one Justice dissenting. The majority concluded that "[t]he ample record is more than sufficient to demonstrate appellants' utter disregard for the judicial process, and while no finding of fraud on the court is necessary to warrant striking the pleadings, appellants' conduct is appropriately characterized as such" (citation omitted). The majority also concluded that Supreme Court properly awarded damages without a hearing because the damages were determinable by reference to the French court's judgment, recognized in New York. The dissent contended that plaintiff failed to "conclusively demonstrate" deceit, which required a showing that the claims were "undisputed" or "admitted," because the Cohens denied committing fraud, and challenged the credibility of the Habibs' testimony, thus raising a material question of fact (citation omitted). We granted defendants leave to appeal (citation omitted) and now affirm, in part.

Defendants contend that the Appellate Division erroneously applied a preponderance of the evidence standard to plaintiff's motion to strike under CPLR 3126, despite its prior decision in Melcher v Apollo Med. Fund Mgt. L.L.C. (citation omitted) which defendants argue required a finding that the misconduct be "conclusively demonstrated." Defendant further argues that plaintiff failed to "conclusively demonstrate" fraud on the court because Maurice and Leon Cohen have consistently denied any misconduct, and the Habibs' testimony raised



credibility issues as to the truth of their statements. Thus, according to defendants, the court was without authority to resolve the outstanding questions for the trier of fact, and should have denied the motion. Defendants further argue that they are entitled to a hearing on damages because plaintiff's claim for damages is not for a "sum certain" and remains subject to factual and legal challenges. For its part, plaintiff argues that it submitted clear and convincing evidence of a massive scheme of fraud on the court characterized by perjury, witness tampering and falsification of documents, and that defendants' failure to comply with discovery is further proof of defendants' egregious actions. They argue that a standard requiring that the fraud is "conclusively demonstrated" is against precedent and unworkable. As for damages, they assert that Supreme Court correctly entered judgment as calculated by the prior judgments against the defendants. The parties do not dispute the court's authority to strike the pleadings, but rather the evidentiary standard applicable to a claim of fraud on the court, and what conduct would justify dismissal based on a finding of fraud. As discussed below, we agree with plaintiff that clear and convincing evidence of fraud on the court is necessary to warrant striking the offending party's pleading, and that the record supports the existence of such evidence. We also agree with plaintiff that judgment on damages was properly entered. In accordance with CPLR 3126:

[i]f any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: [3] an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party (citation omitted).

As we stated in Kihl v Pfeffer, "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (citation omitted). Compliance requires "a timely response and one that evinces a good-faith effort to address the requests meaningfully" (citation omitted). A trial court has discretion to strike pleadings under CPLR 3126 when a party's repeated noncompliance is "dilatory, evasive, obstructive and ultimately contumacious" (citation omitted). Apart from CPLR 3126, a court has inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice. "Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their



lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution" (Anderson v Dunn, 19 U.S. 204, 227, 5 L. Ed. 242 [1821]). Fraud on the court involves wilful conduct that is deceitful and obstructionist, which injects misrepresentations and false information into the judicial process "so serious that it undermines . . . the integrity of the proceeding" (citation omitted). It strikes a discordant chord and threatens the integrity of the legal system as a whole, constituting "a wrong against the institutions set up to protect and safeguard the public" (citation and parenthetical omitted). The federal courts have applied the clear and convincing standard in determining whether the offending party's actions constitute fraud on the court (citation omitted). Characteristic of federal cases finding such fraud is a systematic and pervasive scheme, designed to undermine the judicial process and thwart the non-offending party's efforts to assert a claim or defense by the offending party's repeated perjury or falsification of evidence (citation omitted). Fraud on the court warrants heavy sanctions, including the striking of an offending party's pleadings and dismissal of the action. [Examples of federal decisions omitted] In contrast, courts have failed to find egregious conduct constituting fraud on the courts where the moving party fails to meet its evidentiary burden (citation and parenthetical omitted); the conduct constitutes isolated instances of perjury about matters not central to the issues in the case (citation and parenthetical omitted); or the offending party offers "equally plausible alternative explanations" for discrepancies in testimony or evidence (citation omitted). The evidentiary standard applied by the federal courts is sufficient to protect the integrity of our judicial system, and discourage the type of egregious and purposeful conduct designed to undermine the truth-seeking function of the courts, and impede a party's efforts to pursue a claim or defense. We adopt this standard and conclude that in order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending "party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action" (citations omitted). A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns "issues that are central to the truth-finding process" (citation omitted). Essentially, fraud upon the court requires a showing that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense (citation omitted). A finding of fraud on the court may warrant termination of the proceedings in the non-offending party's favor (citations and



parentheticals omitted). For "when a party lies to the court and [its] adversary intentionally, repeatedly, and about issues central to the truth-finding process, it can fairly be said that [the party] has forfeited [the] right to have [the] claim decided on the merits" (citation omitted). Therefore, once a court concludes that clear and convincing evidence establishes fraud on the court, it may strike a pleading and enter a default judgment. We caution that dismissal is an extreme remedy that "must be exercised with restraint and discretion" (citations and parentheticals omitted). Dismissal is most appropriate in cases like this one, where the conduct is particularly egregious, characterized by lies and fabrications in furtherance of a scheme designed to conceal critical matters from the court and the nonoffending party; where the conduct is perpetrated repeatedly and wilfully, and established by clear and convincing evidence, such as the documentary and testimonial evidence found here. Dismissal is inappropriate where the fraud is not "central to the substantive issues in the case" (citation omitted), or where the court is presented with "an isolated instance of perjury, standing alone, [which fails to] constitute a fraud upon the court" (citation omitted). In such instances, the court may impose other remedies including awarding attorney fees (citation omitted), awarding other reasonable costs incurred (citation and parenthetical omitted), or precluding testimony (citation omitted). In the rare case where a court finds that a party has committed fraud on the court warranting dismissal, the court should note why lesser sanctions would not suffice to correct the offending behavior (citation and parenthetical omitted). Defendants argue that because the potential sanctions are severe and include the possibility of dismissal, a court must find that the evidence "conclusively demonstrates" fraud. Defendants would impose a standard which requires proof that lies and falsifications are admitted or undisputed. However, such a standard is theoretically unsupportable, as well as unworkable in practice because it is the unusual and rare case where there will not be some dispute — regardless of its significance to the matter before the court — as to the conduct and its fraudulent nature. Defendants' proposed evidentiary standard would encourage parties to "create a dispute" by merely protesting the truth of the allegations. Such standard would permit fraud to continue, regardless of the viability of the contentions creating the purported "dispute." In other words, defendants' standard would permit a party to escape a court's consideration of claims of egregious acts of deceit by presenting bare denials of the truth of the allegations. Thus, the "conclusively demonstrates" standard risks setting the bar too high to prevent and discourage fraud on the court. Here, with the exception of Sonia Cohen as discussed below, we perceive no error in the Appellate Division's order affirming the striking of defendants' answers and entering a default judgment. The record reveals numerous instances of perjury, subornation of perjury, witness tampering and falsification of documents by defendants. As Supreme Court and the Appellate Division described in detail,



Maurice and Leon Cohen sought to mislead the court about their ownership interests in the defendant corporations, as well as the conversion of the proceeds from the loan agreement and the sale of the New York Flatotel. The record shows that the Habibs produced the script provided by Maurice and Leon Cohen, which demonstrated that co-defendants Aich and Maraboeuf were entirely dishonest in their assertions that Maurice and Leon did not own any of the defendant entities and that neither had a relationship with Maurice Cohen. Moreover, the script revealed that defendant Maraboeuf was blatantly lying about his role at EALC and his assertion that he had no contact with Maurice Cohen for several years. Additionally, all of the defendants lied about the payment of their legal fees, which in fact were paid by entities controlled by Maurice and Leon Cohen. Defendant Aich testified regarding her multiple meetings with Jim Cox and conversations with Francois Laville — completely aware that these were fictitious individuals, fabricated by Maurice and Leon Cohen. All this conduct was in furtherance of one goal: to hide Maurice and Leon's connections to the alleged theft, and conceal the location of the funds pursued by the plaintiff. Thus, the defendants intended to undermine the New York actions in which plaintiff sought to discover and procure the concealed proceeds of the loan agreement, and committed a fraud on the court. In determining the proper sanctions to be imposed, Supreme Court found that Maurice and Leon Cohen intentionally sought to deceive the court and the plaintiff by concealing their involvement in the sale of the New York Flatotel. The conduct prejudiced the plaintiff by impeding its ability to obtain true discovery and forcing plaintiff to spend enormous amounts of money and time to prove their case. Moreover, the conduct was not isolated and defendants did not attempt to correct their misconduct. In considering a lesser sanction, the court concluded that the deception perpetrated by Maurice and Leon Cohen would continue if the lawsuit was allowed to proceed. These factors were properly considered by the court (citations omitted), and the record fully supports the sanctions imposed. Defendants argue that Supreme Court overstepped its authority because the evidence was in dispute and there were credibility issues related to the Habib sisters' testimony which must be resolved by the trier of fact. However, Supreme Court's decision states quite clearly that the court did not rely solely on the Habib sisters' testimony, but found, additionally, that Maurice and Leon Cohens' "fraud goes beyond the subordination of perjury and witness tampering because they also forged and falsified documents that provided additional support for their defense." In addition to the testimony of the Habibs, Supreme Court indicated it reviewed the script provided by the Cohens, deposition testimony, an affidavit from the attorney who represented the buyers of the New York Flatotel, and "bank records and other documents." After a review of the documentary evidence, Supreme Court found Maurice and Leon Cohen "falsified and forged ... a number of promissory notes," and that the Cohens further "fabricated corporate records and [shareholder] affidavits." Accordingly, Supreme Court's findings support the



conclusion that defendants committed fraud on the court, and warrant striking defendants' answers and entering default judgment. However, the evidence is insufficient to justify the default against defendant Sonia Cohen. In support of striking this defendant's answer, plaintiff points to the fact that she lied about her involvement in her husband's businesses and the concealment of assets by Maurice and Leon, and thus perjured herself during her deposition. The record establishes that Sonia Cohen operated a perfume shop owned by her husband in which defendant Maraboeuf — who she denied knowing — was the manager, and that she was a signatory on at least one corporate bank account controlled by Maurice and Leon Cohen. Her denials are hardly equivalent to the actions of the other defendants, who lied about Maurice and Leon's ownership and management of the New York Flatotel and the business entities which were used as vehicles to siphon funds. Moreover, no direct evidence established that she participated in the meeting regarding the false deposition testimony. Although she is not innocent of misconduct, her statements and denials were not central to the success of the scheme to hide information from the court and the plaintiffs. Accordingly, with respect to defendant Sonia Cohen, the order of the Appellate Division should be modified to vacate the judgment as against her. Lastly, defendants assert that they are entitled to a hearing on damages because the plaintiff's claims are subject to numerous legal and factual challenges. We disagree. The Appellate Division was correct to conclude that the plaintiff's damages were based on the French judgments and the documents submitted to the court. Thus, no hearing was required. Accordingly, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further proceedings in accordance with this opinion, and, as so modified, affirmed.

Citing C.D.R. Creances, Trial Court’s Dismissal Of Complaint Affirmed Hall v. Integrity Real Estate Props., Inc., 124 A.D.3d 1270, 1 N.Y.S.3d 632 (4th Dep’t 2015)

Plaintiff commenced this Labor Law and common-law negligence action seeking damages for personal injuries that he sustained when he fell from a ladder. He now appeals from an order granting the motions of defendants seeking to dismiss the complaint on the ground that plaintiff failed to appear for a deposition ordered by Supreme Court, and denying his cross motion seeking to amend the caption. In support of their respective motions, defendants established that plaintiff commenced this action under the name Mitchell T. Hall and that he signed various court documents under that name. During the discovery process, however, the former attorneys for plaintiff moved to withdraw from representation of him and notified the court and counsel that plaintiff was incarcerated on unspecified



charges arising from the use of that name. Plaintiff later submitted an affidavit stating that his real name is Danny Hall, but that he had been using the alias Mitchell T. Hall, the name of his brother. Plaintiff further stated that his brother died after giving plaintiff permission to use the brother's name, but plaintiff submitted no admissible evidence supporting those statements. The court permitted plaintiff's former attorneys to withdraw and, upon motions of defendants, ordered plaintiff to appear for a deposition. Pursuant to the court's order directing plaintiff to appear for the deposition, notice was sent to "Mitchell T. Hall c/o Danny Hall," at the address that plaintiff previously provided to the court in a notarized statement. Plaintiff did not appear for the court-ordered deposition. Defendants moved separately to dismiss the complaint on the ground that plaintiff failed to appear for the court-ordered deposition, and plaintiff, represented by new counsel, cross-moved to amend the caption to reflect that his name is Danny Hall, a.k.a. Mitchell T. Hall. We reject plaintiff's contention that the court erred in granting the motions. "Trial courts have broad discretion in supervising disclosure and, absent a clear abuse of that discretion, a trial court's exercise of such authority should not be disturbed" (citation omitted). The CPLR provides that, "[i]f any party . . . refuses to obey an order for disclosure . . . , the court may make such orders with regard to the . . . refusal as are just, among them: . . . an order . . . dismissing the action" (citation omitted). Thus, " 'when a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR,' the dismissal of a pleading is warranted" (citation omitted). Here, the court properly concluded that the failure to comply with the discovery order was " 'willful, contumacious or in bad faith' " (citation omitted), and that plaintiff had committed a fraud on the court that was "so serious that it undermines . . . the integrity of the proceeding" (citation omitted). Contrary to plaintiff's further contention, he failed to provide a reasonable excuse for his failure to appear for the deposition (citation omitted). Consequently, we conclude that the court did not abuse its discretion by dismissing the complaint (citation omitted). Contrary to plaintiff's further contention, we agree with defendants that the court properly denied the cross motion to amend the complaint to state plaintiff's purported legal name. In support of his cross motion, plaintiff relied entirely upon his affidavit, in which he explained that he had been using his dead brother's name since 1996. "[That] affidavit[ ], however, . . . was insufficient to establish that there was merely a misnomer in the description of the party [plaintiff]" requiring amendment (citation omitted).

Trial Court’s Improvident Striking of Answer Reversed; Not Type Of Conduct C.D.R. Creances Sanctioned Yemini v. Sharpe, 128 A.D.3d 687, 8 N.Y.S.3d 397 (2d Dep’t 2015)

In an action to recover damages for personal injuries, the defendant Tibor



Hollander appeals from an interlocutory judgment of the Supreme Court, Kings County (Jimenez-Salta, J.), entered June 3, 2014, which, upon an order of the same court dated May 7, 2014, striking his answer and cross claim, is in favor of the plaintiff and against him, in effect, on the issue of liability. Ordered that the interlocutory judgment is reversed, on the law and in the exercise of discretion, without costs or disbursements, the order is vacated, and the answer and cross claim of the defendant Tibor Hollander are reinstated. On Monday morning, May 5, 2014, after a jury had already been selected, and immediately before the defendant Tibor Hollander was expected to begin testifying, Hollander's attorney advised the trial court, for the first time, that her client would require the services of an "Old Hungarian" interpreter. After an extended colloquy, and an effort to obtain such an interpreter, the court informed counsel that the services of an "Old Hungarian" interpreter could not be obtained. The proceedings were then adjourned, and the court directed that, on the following day, Hollander would testify either through a modern standard Hungarian interpreter, or, if no such interpreter were available, in English, as he had done during the course of a pretrial deposition. On May 6, 2014, Hollander's attorney "reassert[ed] [her] client's right to a court appointed . . . Old Hungarian interpreter." As a result of counsel's insistence upon her client's supposed right to an "Old Hungarian" interpreter, as well as certain other discourteous behavior on counsel's part, the Supreme Court struck Hollander's answer. Under all of the circumstances presented here, it was an improvident exercise of the Supreme Court's discretion to impose the extreme sanction of striking Hollander's answer. This case does not reflect the sort of "fraud on the court" which would warrant such a sanction (citations omitted). Moreover, this sort of sanction is "an extreme remedy that 'must be exercised with restraint and discretion' " (citations omitted).

Under the particular circumstances of this case, the determination as to the propriety and extent of any sanctions to be imposed upon Hollander's counsel should only have been made "upon motion in compliance with CPLR 2214 or 2215" (citation omitted).

Striking of Pleading Affirmed Herman v. Herman, 2015 NY Slip Op 08925, 19 N.Y.S.3d 741 (1st Dep’t 2015)

Our review of the extensive record of discovery disputes and motion practice supports a finding that defendant/third-party plaintiff Julian Maurice Herman's (Maurice) repeated noncompliance with the court's many discovery orders was "dilatory, evasive, obstructive and ultimately contumacious" (citation omitted). It



prejudiced plaintiffs "by impeding [their] ability to obtain true discovery and by forcing [them] to spend enormous amounts of money and time to prove [their] case" (citation omitted), and was an unnecessary drain on limited court resources. Maurice's misconduct was not isolated, and he made little or no good faith attempt to correct it (citation omitted). A lesser sanction would not have deterred Maurice's continued discovery violations (citation omitted).

Failure to Confer In Good Faith or Demonstrate Why Conferral Not Held; Defendant Waived IME By Twice Failing to Have Interpreter Present Perez De Sanchez v. Trevz Trucking LLC, 124 A.D.3d 527, 998 N.Y.S.2d 626 (1st Dep’t 2015)

Defendants failed to demonstrate that they conferred with plaintiff’s counsel in a good faith effort to resolve the disclosure issues raised by the motion, or that there was ′′good cause why no such conferral . . . was held′′ (citations omitted). Under the circumstances, including that defendants’ orthopedic expert addressed all of plaintiff’s claimed injuries in his report and examination, and the fact that plaintiff appeared twice for the scheduled examination but the defendants’ expert refused to conduct the exam due to defendants’ failure to have an interpreter present, the court providently exercised its discretion in determining that defendants waived their right to conduct a neurological examination by failing to make arrangements necessary to perform the exam within the extended deadline set by the compliance conference order (citations omitted).

Demonstrating Search Efforts, Without Alleging Unavailability, Not Sufficient Robinson v. Highbridge House Ogden, LLC, 2015 NY Slip Op 00457 (1st Dep’t 2015)

In this action, plaintiff seeks to recover for injuries allegedly sustained on a stairwell in defendants' apartment complex as a result of a wet, transitory condition consisting of urine. To the extent that plaintiff seeks records for any other location or type of condition or for a period exceeding one year, the request is not "material and necessary in the prosecution ... of an action" (citations omitted). Inasmuch as defendants have not alleged that the records sought are unavailable, an affidavit with respect to their search for records cannot serve as a substitute for production (citation omitted).

Attorney Suspended By New York For Five Years For Misconduct In Federal Litigation Matter of Peters, 127 A.D.3d 103, 3 N.Y.S.3d 357 (1st Dep’t 2015)

Respondent was admitted to the practice of law in the State of New York by the Third Judicial Department on May 16, 2000, as Kristan Lizabeth Peters. She was also admitted to the Bar in Connecticut, where she currently resides. At all times



relevant to this proceeding, respondent maintained an office for the practice of law in the First Judicial Department. By order of April 10, 2013, the United States District Court for the Southern District of New York (Southern District) suspended respondent for seven years, nunc pro tunc to April 10, 2008 (the date of her interim suspension) for misconduct committed in connection with a federal civil action. Specifically, respondent was suspended for instructing an associate in her law firm to alter deposition transcripts with work product for the purpose of preventing their discoverability and misleading the court as to the matter; copying the transcripts in intentional disregard of the court's orders; and using the transcripts in a federal action in Massachusetts in violation of the court's confidentiality order. Respondent's misconduct arose out of a federal lawsuit commenced in 2007 by the law firm of Dorsey & Whitnesy on behalf of Wolstyers Kluwer Financial Services, Inc. (Wolsters). Respondent, then a partner at Dorsey & Whitney, was lead counsel in the matter. Wolsters alleged that three of its former employees had taken certain proprietary information and divulged it to their new employer. The district court granted a temporary restraining order and ordered expedited discovery. The parties exchanged discovery documents, and the individual defendants were deposed. While discovery was ongoing, the district court entered a Confidentiality Order providing in part that certain material — including all discovery material at issue here — "shall not be used in any other litigation proceeding," and that the district court's jurisdiction to enforce those restrictions would survive the lawsuit. The defendants moved to dismiss on the ground, inter alia, that the district court lacked personal jurisdiction over the defendants, all of them located in Massachusetts. The Dorsey attorneys then began to consider voluntary dismissal in New York and re-filing in the District of Massachusetts. Wolsters gave respondent permission to dismiss the suit. During a subsequent conference call with the court and opposing counsel, however, respondent did not mention the pending dismissal. Either during or shortly after the conference call, respondent (the partner in charge) instructed the junior partner on the case to file the dismissal; the junior partner sent notice of the dismissal by regular mail — though not electronically. Despite the dismissal, respondent refused to return the discovery material produced by the defendants, including three CDs (containing 153,000 pages of documents) that were produced after the dismissal had been quietly effected. Despite repeated orders by the district court to return all discovery material, including copies of deposition transcripts, the return of discovery material was not completed until two weeks after the suit was dismissed. In the meantime, respondent filed a motion for temporary injunctive relief in the District of Massachusetts, appending 115 pages of material produced in New York that were subject to the Confidentiality Order.



The defendants moved for sanctions, and the district court scheduled an evidentiary hearing. The parties subsequently settled, and the defendants withdrew the sanctions motion; but the court, having its own concerns regarding the lawyers' conduct, proceeded with the hearing. After a five-day evidentiary hearing, during which respondent, represented by counsel, testified, on November 30, 2007, the district court imposed a total of 27 non-monetary sanctions on respondent, among others1. In addition, the district court referred respondent to the Southern District Committee on Grievance (Grievance Committee).2 After the Second Circuit affirmed the sanctions imposed on respondent by the district court,3 the Grievance Committee concluded that respondent's misconduct had violated: New York Code of Professional Responsibility (DR) 1-102(A)(5), which prohibited conduct prejudicial to the administration of justice; DR 1-102(A)(4), which prohibited a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and DR 7-106(A) (22 NYCRR 1200.37[a]), which prohibited a lawyer from disregarding, or advising a client to disregard, a ruling of a tribunal made in the course of a proceeding. On appeal, by a decision and order dated April 25, 2011, the Second Circuit vacated the Grievance Committee's suspension order and remanded for further proceedings, finding that respondent was entitled to an evidentiary hearing on the defaced transcript allegations (citation omitted)4. As to the breach of the confidentiality order, the Second Circuit found that, while respondent unquestionably violated the order, the Grievance Committee had made insufficient findings as to whether respondent had the requisite venal intent to sustain a DR 1-102(A)(4) (22 NYCRR 1200.3[a][4] violation (citation omitted). The Second Circuit also noted that should the Grievance Committee determine after additional proceedings that a suspension or disbarment was warranted, it should explain its rationale for the severity of the sanction imposed (citation omitted). Notably, the Second Circuit emphasized that in vacating the Grievance Committee's suspension order, it was not suggesting that the disciplinary charges against respondent were improperly brought, only that certain procedures and findings were inadequate (citation omitted). On remand, the Grievance Committee assigned the proceeding against respondent to a Magistrate, who, between June and August 2012, conducted an 11-day evidentiary hearing at which respondent testified on her own behalf and cross-examined witnesses. In a 118-page report dated January 23, 2013, the Magistrate found that respondent acted with a culpable state of mind when she committed the misconduct with which she was charged, namely: respondent's direction to an associate to alter or amend documents for the purpose of preventing their discoverability and the attempt to mislead the court as to these events; and respondent's copying of transcripts and ordering of additional copies of transcripts in intentional disregard of the court's orders, and subsequent use of the transcripts in the Massachusetts action in violation of the confidentiality order. In mitigation, the Magistrate considered respondent's previously unblemished 25-year legal career. As to aggravation, the Magistrate noted that respondent refused to acknowledge her misconduct; was "untruthful" during the hearing and "[came]



dangerously close to engaging in bad faith obstruction of the disciplinary proceeding." As to sanction, the Magistrate recommended a five-year suspension, nunc pro tunc to April 10, 2008. By decision of April 10, 2013, the Grievance Committee adopted the Magistrate's findings of fact and conclusions of law, but suspended respondent from practice before the Southern District of New York for seven years, nunc pro tunc to April 10, 2008. The Grievance Committee believed that respondent was deserving of a longer punishment for the following reasons: "[Respondent's] most serious failing involves the corruption of a young and inexperienced lawyer, over whom she had power and authority, and whom she ordered to commit conduct that could have ended with his own disciplinary hearing....[Respondent] exhibits no remorse for her inappropriate conduct; rather, she arrogantly persists in trying to salvage her reputation at the expense of the unfortunate [associate] - branding him and others at the Dorsey firm as liars when it is she who has consistently lied, both about what she did and about why she did it." "Equally problematic is Respondent's habit of twisting the truth. At the hearing, [respondent] continually tried to shift blame to virtually every other person who came within arm's length of the Wolters Kluwer case....Respondent's flagrant mischaracterization of the record, and her meritless objections to [the Magistrate's] carefully crafted and amply supported findings, indicate that she has yet to accept any responsibility for what the Committee views as serious professional wrongdoing." Respondent, represented by counsel, appealed to the Second Circuit, which by decision of April 4, 2014 affirmed the seven-year suspension imposed by the Grievance Committee, noting that "[i]n view of the [Grievance Committee's] conclusions regarding the nature of [respondent's] conduct, we cannot say that its imposition of a seven-year suspension was substantively unreasonable,' shocking to the judicial conscience, or otherwise unsupportable" (citation oitted). The Departmental Disciplinary Committee now seeks an order pursuant to Judiciary Law § 90(2) and Rules of the Appellate Division, First Department (citation omitted), suspending respondent for seven years nunc pro tunc to April 10, 2008, which in New York is equivalent to disbarment, predicated upon similar discipline imposed by the Southern District of New York. In response, respondent requests that this Court impose a short, unspecified suspension nunc pro tunc to April 10, 2008 and that respondent's reinstatement be made automatic. Respondent does not assert any of the defenses to reciprocal discipline enumerated at 22 NYCRR 603.3-c, that is, lack of notice and opportunity to be heard, infirmity of proof, or the absence of any comparable New York provision warranting discipline for the misconduct identified by the foreign jurisdiction. We



note that respondent was represented by counsel throughout the course of the federal disciplinary proceedings. He was afforded adequate due process before the United States District Court for the Southern District of New York, having been advised of the allegations against him in the district court's several orders to show cause, to each of which he responded with a detailed submission prepared with the assistance of counsel, was afforded an evidentiary hearing at which she testified on her own behalf and cross-examined witnesses, filed objections to the Magistrate's report, twice appealed to the Second Circuit, and to the United States Supreme Court. Further, there is ample evidentiary support for the Grievance Committee's findings that respondent violated Code of Professional Responsibility (DR 1-102[A][4], DR 1-102[A][5], DR 7-102[A][5]; 22 NYCRR 1200.3[a][4] and DR 7-106[A], 22 NYCRR 1200.39[a]). Thus, the only issue left for this Court to decide is the appropriate sanction to be imposed. On review of the entire record and under all the circumstances, we find that the sanction to be imposed should be coextensive with that directed by the Southern District of New York. In doing so, we are mindful of the fact that as a general rule in reciprocal disciplinary matters, this Court gives significant weight to the sanction imposed by the jurisdiction in which the charges were initially brought (citations omitted). We have also provided that a sanction commence with the date an attorney voluntarily ceased to practice law (citation omitted). Reportedly, respondent has not practiced law since early 2010, which constitutes a significant period of the time that has transpired since the date of the Southern District's April 8, 2008, interim suspension order. Finally, because respondent will be obliged to file a petition for reinstatement to resume the practice of law in this state (citation omitted), we decline respondent's request for automatic reinstatement. Accordingly, the Committee's motion should be granted to the extent of suspending respondent from the practice of law for a period of five years nunc pro tunc to April 10, 2010, and until the further order of this Court.

C. Penalties For Failure To Disclose

CPLR 3126 Disclosure Sanction, Including Striking Pleading & Entering Default Judgment, For Fraud on Court Affirmed by Court of Appeals CDR Creances S.A.S. v. Cohen, 23 N.Y.3d 307, 15 N.E.3d 274, 991 N.Y.S.2d 519 (2014)

In this appeal we conclude that where a court finds, by clear and convincing evidence, conduct that constitutes fraud on the court, the court may impose sanctions including, as in this case, striking pleadings and entering default judgment against the offending parties to ensure the continuing integrity of our judicial system. With one exception, the record on this appeal supports such sanctions, and we therefore affirm, in part, the Appellate Division (citation



omitted).

* * *

At the August 2010 sentencing, the District Court concluded that Maurice and Leon Cohen had perpetrated fraud on Supreme Court in New York. The District Court found

Maurice and Leon Cohen's criminal activity "spanned the better part of a decade or more, involved numerous fictitious entities, an elaborate web of shell corporations, and heavy handed [treatment] of a number [of] less sophisticated financially dependant employees

in the scheme," and sentenced both Maurice and Leon Cohen to 120 months in federal prison. Shortly after defendants' sentencing, plaintiff again moved pursuant to CPLR 3126 to strike defendants' pleadings and for a default judgment in the consolidated 2003 and 2006 actions, alleging all of the defendants perpetrated fraud on the court. Supreme Court held a full evidentiary hearing at which the Habibs testified to the Cohens' carefully orchestrated scheme of lies and evidence fabrication. Repeating much of their federal testimony, they recounted a meeting held prior to their depositions in New York, attended by defendants Maurice Cohen, Leon Cohen, Robert Maraboeuf and Allegria Aich, during which the Cohens instructed them and the other defendants to provide false and misleading testimony. At the meeting the Cohens provided the Habibs with a written "script", which plaintiff introduced into evidence at the hearing, which was intended to provide the Habibs with false answers to be given to their attorney and at their depositions. The Cohens told the Habibs to deny knowing both Maurice and Leon, to present themselves as representatives of the entities the Cohens' denied controlling, and to give false testimony at their depositions that would corroborate false testimony of defendants Aich and Maraboeuf. According to the Habibs, the Cohens also created fictitious characters, Francis Lavalle and Jim Cox, to further the Cohens' lies and conceal their actions. Joelle Habib was instructed to testify that Francis Lavalle hired her and that Jim Cox controlled another entity the Cohens denied ownership of. Aich had also falsely testified that Lavalle controlled the New York Flatotel and Cox controlled Blue Ocean. The Habibs further testified that Aich and Maraboeuf repeatedly perjured themselves in their depositions in an effort to conceal Maurice and Leon Cohen's involvement in the conversion of proceeds from the loan agreement and the sale of the New York Flatotel. Based on the testimony and plaintiff's exhibits, Supreme Court determined, by clear and convincing evidence, that defendants had perpetrated a fraud on the court and granted plaintiff's motion, basing its authority on the court's inherent power to take action to preserve the integrity of the judicial process. Supreme Court found, inter alia, Maurice and Leon Cohen had suborned perjury by providing the Habibs with a "script" containing false answers to be given to their attorneys and at their depositions; created Francis Lavalle and Jim Cox — wholly



fictitious individuals — and intentionally implicated them as controlling the defendant corporations; forged the affidavits of others in an effort to disclaim ownership of the defendant corporations; secretly paid each of their co-defendants legal fees through corporate entities in an effort to financially coerce their false testimony; and intentionally and pervasively ignored court ordered discovery obligations. Supreme Court also found that defendants Maraboeuf and Aich intentionally lied at their depositions, denying a relationship with Maurice and Leon Cohen. Moreover, defendant Aich urged Maraboeuf and the Habibs to lie in accordance with the scripts they were given, and to falsely state that they paid their own legal fees. Supreme Court struck defendants' answers and entered default judgment. The Appellate Division affirmed, with one Justice dissenting. The majority concluded that "[t]he ample record is more than sufficient to demonstrate appellants' utter disregard for the judicial process, and while no finding of fraud on the court is necessary to warrant striking the pleadings, appellants' conduct is appropriately characterized as such" (citation omitted). The majority also concluded that Supreme Court properly awarded damages without a hearing because the damages were determinable by reference to the French court's judgment, recognized in New York. The dissent contended that plaintiff failed to "conclusively demonstrate" deceit, which required a showing that the claims were "undisputed" or "admitted," because the Cohens denied committing fraud, and challenged the credibility of the Habibs' testimony, thus raising a material question of fact (citation omitted). We granted defendants leave to appeal (citation omitted) and now affirm, in part.

Defendants contend that the Appellate Division erroneously applied a preponderance of the evidence standard to plaintiff's motion to strike under CPLR 3126, despite its prior decision in Melcher v Apollo Med. Fund Mgt. L.L.C. (citation omitted) which defendants argue required a finding that the misconduct be "conclusively demonstrated." Defendant further argues that plaintiff failed to "conclusively demonstrate" fraud on the court because Maurice and Leon Cohen have consistently denied any misconduct, and the Habibs' testimony raised credibility issues as to the truth of their statements. Thus, according to defendants, the court was without authority to resolve the outstanding questions for the trier of fact, and should have denied the motion. Defendants further argue that they are entitled to a hearing on damages because plaintiff's claim for damages is not for a "sum certain" and remains subject to factual and legal challenges. For its part, plaintiff argues that it submitted clear and convincing evidence of a massive scheme of fraud on the court characterized by perjury, witness tampering and falsification of documents, and that defendants' failure to comply with discovery is further proof of defendants' egregious actions. They argue that a standard requiring that the fraud is "conclusively demonstrated" is against precedent and unworkable. As for damages, they assert that Supreme Court correctly entered judgment as calculated by the prior judgments against the



defendants. The parties do not dispute the court's authority to strike the pleadings, but rather the evidentiary standard applicable to a claim of fraud on the court, and what conduct would justify dismissal based on a finding of fraud. As discussed below, we agree with plaintiff that clear and convincing evidence of fraud on the court is necessary to warrant striking the offending party's pleading, and that the record supports the existence of such evidence. We also agree with plaintiff that judgment on damages was properly entered. In accordance with CPLR 3126:

[i]f any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: [3] an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party (citation omitted).

As we stated in Kihl v Pfeffer, "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (citation omitted). Compliance requires "a timely response and one that evinces a good-faith effort to address the requests meaningfully" (citation omitted). A trial court has discretion to strike pleadings under CPLR 3126 when a party's repeated noncompliance is "dilatory, evasive, obstructive and ultimately contumacious" (citation omitted). Apart from CPLR 3126, a court has inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice. "Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution" (Anderson v Dunn, 19 U.S. 204, 227, 5 L. Ed. 242 [1821]). Fraud on the court involves wilful conduct that is deceitful and obstructionist, which injects misrepresentations and false information into the judicial process "so serious that it undermines . . . the integrity of the proceeding" (citation omitted). It strikes a discordant chord and threatens the integrity of the legal system as a whole, constituting "a wrong against the institutions set up to protect and safeguard the public" (citation and parenthetical omitted). The federal courts have applied the clear and convincing standard in determining whether the offending party's actions constitute fraud on the court (citation



omitted). Characteristic of federal cases finding such fraud is a systematic and pervasive scheme, designed to undermine the judicial process and thwart the non-offending party's efforts to assert a claim or defense by the offending party's repeated perjury or falsification of evidence (citation omitted). Fraud on the court warrants heavy sanctions, including the striking of an offending party's pleadings and dismissal of the action. [Examples of federal decisions omitted] In contrast, courts have failed to find egregious conduct constituting fraud on the courts where the moving party fails to meet its evidentiary burden (citation and parenthetical omitted); the conduct constitutes isolated instances of perjury about matters not central to the issues in the case (citation and parenthetical omitted); or the offending party offers "equally plausible alternative explanations" for discrepancies in testimony or evidence (citation omitted). The evidentiary standard applied by the federal courts is sufficient to protect the integrity of our judicial system, and discourage the type of egregious and purposeful conduct designed to undermine the truth-seeking function of the courts, and impede a party's efforts to pursue a claim or defense. We adopt this standard and conclude that in order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending "party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action" (citations omitted). A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns "issues that are central to the truth-finding process" (citation omitted). Essentially, fraud upon the court requires a showing that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense (citation omitted). A finding of fraud on the court may warrant termination of the proceedings in the non-offending party's favor (citations and parentheticals omitted). For "when a party lies to the court and [its] adversary intentionally, repeatedly, and about issues central to the truth-finding process, it can fairly be said that [the party] has forfeited [the] right to have [the] claim decided on the merits" (citation omitted). Therefore, once a court concludes that clear and convincing evidence establishes fraud on the court, it may strike a pleading and enter a default judgment. We caution that dismissal is an extreme remedy that "must be exercised with restraint and discretion" (citations and parentheticals omitted). Dismissal is most appropriate in cases like this one, where the conduct is particularly egregious, characterized by lies and fabrications in furtherance of a scheme designed to conceal critical matters from the court and the nonoffending party; where the conduct is perpetrated repeatedly and wilfully, and established by clear and



convincing evidence, such as the documentary and testimonial evidence found here. Dismissal is inappropriate where the fraud is not "central to the substantive issues in the case" (citation omitted), or where the court is presented with "an isolated instance of perjury, standing alone, [which fails to] constitute a fraud upon the court" (citation omitted). In such instances, the court may impose other remedies including awarding attorney fees (citation omitted), awarding other reasonable costs incurred (citation and parenthetical omitted), or precluding testimony (citation omitted). In the rare case where a court finds that a party has committed fraud on the court warranting dismissal, the court should note why lesser sanctions would not suffice to correct the offending behavior (citation and parenthetical omitted). Defendants argue that because the potential sanctions are severe and include the possibility of dismissal, a court must find that the evidence "conclusively demonstrates" fraud. Defendants would impose a standard which requires proof that lies and falsifications are admitted or undisputed. However, such a standard is theoretically unsupportable, as well as unworkable in practice because it is the unusual and rare case where there will not be some dispute — regardless of its significance to the matter before the court — as to the conduct and its fraudulent nature. Defendants' proposed evidentiary standard would encourage parties to "create a dispute" by merely protesting the truth of the allegations. Such standard would permit fraud to continue, regardless of the viability of the contentions creating the purported "dispute." In other words, defendants' standard would permit a party to escape a court's consideration of claims of egregious acts of deceit by presenting bare denials of the truth of the allegations. Thus, the "conclusively demonstrates" standard risks setting the bar too high to prevent and discourage fraud on the court. Here, with the exception of Sonia Cohen as discussed below, we perceive no error in the Appellate Division's order affirming the striking of defendants' answers and entering a default judgment. The record reveals numerous instances of perjury, subornation of perjury, witness tampering and falsification of documents by defendants. As Supreme Court and the Appellate Division described in detail, Maurice and Leon Cohen sought to mislead the court about their ownership interests in the defendant corporations, as well as the conversion of the proceeds from the loan agreement and the sale of the New York Flatotel. The record shows that the Habibs produced the script provided by Maurice and Leon Cohen, which demonstrated that co-defendants Aich and Maraboeuf were entirely dishonest in their assertions that Maurice and Leon did not own any of the defendant entities and that neither had a relationship with Maurice Cohen. Moreover, the script revealed that defendant Maraboeuf was blatantly lying about his role at EALC and his assertion that he had no contact with Maurice Cohen for several years. Additionally, all of the defendants lied about the payment of their legal fees, which in fact were paid by entities controlled by Maurice and Leon Cohen. Defendant Aich testified regarding her multiple meetings with Jim Cox and conversations with Francois Laville — completely aware that these were fictitious



individuals, fabricated by Maurice and Leon Cohen. All this conduct was in furtherance of one goal: to hide Maurice and Leon's connections to the alleged theft, and conceal the location of the funds pursued by the plaintiff. Thus, the defendants intended to undermine the New York actions in which plaintiff sought to discover and procure the concealed proceeds of the loan agreement, and committed a fraud on the court. In determining the proper sanctions to be imposed, Supreme Court found that Maurice and Leon Cohen intentionally sought to deceive the court and the plaintiff by concealing their involvement in the sale of the New York Flatotel. The conduct prejudiced the plaintiff by impeding its ability to obtain true discovery and forcing plaintiff to spend enormous amounts of money and time to prove their case. Moreover, the conduct was not isolated and defendants did not attempt to correct their misconduct. In considering a lesser sanction, the court concluded that the deception perpetrated by Maurice and Leon Cohen would continue if the lawsuit was allowed to proceed. These factors were properly considered by the court (citations omitted), and the record fully supports the sanctions imposed. Defendants argue that Supreme Court overstepped its authority because the evidence was in dispute and there were credibility issues related to the Habib sisters' testimony which must be resolved by the trier of fact. However, Supreme Court's decision states quite clearly that the court did not rely solely on the Habib sisters' testimony, but found, additionally, that Maurice and Leon Cohens' "fraud goes beyond the subordination of perjury and witness tampering because they also forged and falsified documents that provided additional support for their defense." In addition to the testimony of the Habibs, Supreme Court indicated it reviewed the script provided by the Cohens, deposition testimony, an affidavit from the attorney who represented the buyers of the New York Flatotel, and "bank records and other documents." After a review of the documentary evidence, Supreme Court found Maurice and Leon Cohen "falsified and forged ... a number of promissory notes," and that the Cohens further "fabricated corporate records and [shareholder] affidavits." Accordingly, Supreme Court's findings support the conclusion that defendants committed fraud on the court, and warrant striking defendants' answers and entering default judgment. However, the evidence is insufficient to justify the default against defendant Sonia Cohen. In support of striking this defendant's answer, plaintiff points to the fact that she lied about her involvement in her husband's businesses and the concealment of assets by Maurice and Leon, and thus perjured herself during her deposition. The record establishes that Sonia Cohen operated a perfume shop owned by her husband in which defendant Maraboeuf — who she denied knowing — was the manager, and that she was a signatory on at least one corporate bank account controlled by Maurice and Leon Cohen. Her denials are hardly equivalent to the actions of the other defendants, who lied about Maurice and Leon's ownership and management of the New York Flatotel and the business



entities which were used as vehicles to siphon funds. Moreover, no direct evidence established that she participated in the meeting regarding the false deposition testimony. Although she is not innocent of misconduct, her statements and denials were not central to the success of the scheme to hide information from the court and the plaintiffs. Accordingly, with respect to defendant Sonia Cohen, the order of the Appellate Division should be modified to vacate the judgment as against her. Lastly, defendants assert that they are entitled to a hearing on damages because the plaintiff's claims are subject to numerous legal and factual challenges. We disagree. The Appellate Division was correct to conclude that the plaintiff's damages were based on the French judgments and the documents submitted to the court. Thus, no hearing was required. Accordingly, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further proceedings in accordance with this opinion, and, as so modified, affirmed.

Expert Had Knowledge Beyond That Of The Average Supreme Court Justice Hurrell-Harding v. State of New York, 119 A.D.3d 1052, 990 N.Y.3d 286 (3d Dep’t 2014)

This appeal is the latest chapter in a class action lawsuit seeking a declaration that indigent criminal defendants in the five defendant counties are being actually or constructively denied the right to counsel as a result of systemic failures in defendant State of New York's public defense system (citation omitted). In response to a demand for expert disclosure, plaintiffs advised defendants that they intended to call Robert Boruchowitz, Norman Lefstein and Robert Spangenberg (hereinafter the experts) as expert witnesses to testify as to the prevailing professional standards governing the provision of legal representation to indigent criminal defendants and whether the structure and operation of the public defense systems in the five counties meets those standards1 Supreme Court granted the motion by defendant Governor Andrew Cuomo and the State (hereinafter collectively referred to as defendants) to preclude such testimony, concluding that the information to be imparted by the experts was not outside the ordinary experience and knowledge of a Supreme Court Justice, as the trier of fact. Upon reconsideration, Supreme Court adhered to its determination concerning the experts. Plaintiffs appeal from both orders. While the admissibility of expert testimony is a matter left primarily to the discretion of the trial court (citations omitted), we conclude that, here, Supreme

1 Plaintiffs also disclosed that they intended to call Gary King as an expert statistician to testify about the statistical analyses of data he conducted related to the provision of public defense services in the defendant counties. Supreme Court initially precluded King's expert testimony, but, upon plaintiff's motion for reconsideration, the court permitted it.



Court should not have precluded the testimony of the experts. "Under familiar rules, expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence" of the trier of fact (citations omitted). "[T]his principle applies to testimony regarding both 'the ultimate questions and those of lesser significance'" (citations omitted). Notably, expert testimony is "appropriate to clarify a wide range of issues calling for the application of accepted professional standards" (citation omitted). Here, the experts possess the requisite skill, training, education, knowledge and/or experience to qualify as experts on the operation of indigent defense systems and the evaluation of such systems in light of prevailing professional standards (citation omitted). Despite their qualifications, Supreme Court concluded that the experts' testimony was both "unnecessary and improper" in this action because the average Supreme Court Justice possesses the requisite knowledge and/or experience to comprehend the evidence and decide the issues presented. If this case were simply about individualized claims of denial of counsel at a critical stage of a criminal proceeding, we might agree. However, it is not. At its core, this litigation is about system-wide conditions relating to and affecting the delivery of public defense—such as caseloads, funding and oversight, among others—and whether these conditions in the defendant counties are such that "the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet" (citation omitted). By virtue of their extensive experience, the experts possess specialized knowledge with respect to the operation of public defense systems, the professional standards applicable to such systems, and the impact of systemic shortcomings on the provision of counsel to indigent criminal defendants at all critical stages. Such particularized knowledge is, manifestly, beyond that of a typical Supreme Court Justice, whose experience is oft confined to case-by-case determinations (citation omitted)2 We therefore conclude that Supreme Court improvidently exercised its discretion in precluding the experts' testimony. Accordingly, that part of its November 12, 2013 order must be reversed. In light of our determination, plaintiffs' challenge to the partial denial of their motion for renewal has been rendered academic.

2 We note that expert testimony of this nature has been routinely admitted in similar systemic cases challenging the provision of counsel to indigent criminal [***6] defendants (see e.g. New York County Lawyers' Assn. v State of New York, 196 Misc 2d 761, 776, 785-788, 763 NYS2d 397 [2003]; Wilbur v City of Mount Vernon, 2013 WL 6275319, *3, 989 F. Supp. 2d 1122, 2013 U.S. Dist. LEXIS 171187, *10 [WD Wash 2013]; US ex rel. Green v Washington, 917 F Supp 1238, 1250 [ND Ill 1996]; Public Defender, Eleventh Judicial Circuit of Fla. v State, 115 So3d 261, 275 [Fla 2013]). The same is true for various other forms of systemic reform litigation (see e.g. Campaign for Fiscal Equity v State of New York, 100 NY2d 893, 801 NE2d 326, 769 NYS2d 106 [2003] [permitting expert testimony from a variety of education experts in assessing whether the state's education system met minimum constitutional guarantees]; Brown v Plata, US , , 131 S Ct 1910, 1933-1935, 179 L Ed 2d 969 [2011]; Nicholson v Williams, 203 F Supp 2d 153, 207-221 [2002]; Thomas S. v Flaherty, 699 F Supp 1178, 1187-1192 [1998], affd 902 F2d 250 [4th Cir 1990], cert denied 498 US 951, 111 S Ct 373, 112 L Ed 2d 335 [1990]).



Preclusion of Expert Affirmed For Eight Month Delay After Drafting in Exchanging Non-Compliant Expert Report, After Deadline; Dismissal of Complaint Reversed

Maggio v. Dougherty, 130 A.D.3d 1446, 13 N.Y.S.3d 744 (4th Dep’t 2015)

In this action for medical malpractice, plaintiff alleges that defendants failed to diagnose his Wernicke’s Syndrome and failed to follow the standard of medical care in the prescription and administration of thiamine. Defendants moved and cross-moved pursuant to, inter alia, CPLR 3126 for an order precluding plaintiff from offering any expert evidence at trial for failure to comply with CPLR 3101 (d) (1), and dismissing the complaint. Supreme Court granted the motions and cross motion, and plaintiff appeals. We reject plaintiff’s contention that the court erred in granting the motions and cross motion insofar as they sought preclusion. ′′It is within the sound discretion of the trial court to determine whether a witness may testify as an expert[,] and that determination should not be disturbed in the absence of serious mistake, an error of law or abuse of discretion′′ (citation omitted). The record establishes that the report of plaintiff’s expert was prepared in draft format prior to plaintiff’s cross motion for an extension of time to provide expert disclosure and that plaintiff delayed disclosing that report for approximately eight months after its preparation. Plaintiff does not dispute that he disclosed the expert’s report after the court-imposed deadline for disclosure. Furthermore, the report failed to disclose information required by CPLR 3101 (d) (1). We therefore perceive no abuse of the court’s discretion in granting preclusion (citation omitted). We agree with plaintiff, however, that the court erred in granting those parts of the motions and cross motion seeking dismissal of the complaint on the ground that plaintiff cannot establish a prima facie case without the benefit of expert testimony (citations omitted). We therefore modify the order accordingly. The motions and cross motion sought dismissal as a sanction for a discovery violation rather than summary judgment dismissing the complaint. We conclude that, under the circumstances of this case, preclusion was the appropriate sanction and that the court therefore abused its discretion in dismissing the complaint (citations omitted).

Order on Motion In Limine Appealable That “Clearly Involves the Merits of the Controversy . . . and Affects a Substantial Right:” Preclusion of Expert Properly Denied Absent “Evidence of Intentional or Willful Failure to Disclose and a Showing of Prejudice”

Sisemore v. Leffler, 125 A.D.3d 1374, 3 N.Y.S.3d 530 (4th Dep’t 2015)

We conclude that Supreme Court properly denied the motion. ′′Where the plaintiff[s] seek[] to allege continuing consequences of the injuries suffered and



described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars’′′ (citations omitted). Here, plaintiffs’ second supplemental bill of particulars alleged that plaintiff may require surgery in the future, which could involve anterior C5-6 and C6-7 discectomy and fusion. In addition, plaintiffs alleged ′′future cumulative economic loss′′ of between approximately $1,299,555.00 and $1,699,464.00. Plaintiffs had alleged in their prior bills of particulars that plaintiff may require surgery and that there would be a claim for future lost earnings. Thus, the portions of the second supplemental bill of particulars at issue were ′′an anticipated sequelae′′ of the injuries and damages previously alleged and did not allege new claims (citation omitted). Contrary to defendants’ further contention, the court properly refused to preclude plaintiffs’ experts from testifying at trial due to insufficient expert disclosure. ′′[P]reclusion [of expert testimony] for failure to comply with CPLR 3101 (d) is improper unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party′′ (citations omitted), and here defendants failed to provide any evidence of a willful or intentional failure to disclose by plaintiffs or any evidence of prejudice (citation omitted). Finally, defendants’ alternative contention that plaintiffs’ second supplemental bill of particulars and expert disclosure were not timely served in view of the scheduled date of trial was rendered moot because the trial was adjourned.

X. Trial Issues

1. Adjournments

Trial Court Erred In Dismissing Case Where Attorney Was Actually Engaged In Another Trial; Case Remitted To A Different Justice For Trial Warner v. Orange County Regional Developmental Ctr., 2015 NY Slip Op 02113 (2d Dep’t 2015)

Approximately one week before the scheduled trial date of this matter, counsel for the plaintiff proffered, via facsimile transmission to opposing counsel, a document detailing that he was presently engaged in a jury trial in another court that likely would proceed for three more weeks and requesting an adjournment of the upcoming scheduled trial in this matter. The defendant's counsel attached this document to a letter that he sent to the Supreme Court, explaining that he opposed any adjournment. The court issued a handwritten order which directed, inter alia, that the scheduled trial date would not be adjourned and that the action would be dismissed if the plaintiff failed to appear for jury selection and that no affidavit of actual engagement would be accepted for filing. Thereafter, on the date scheduled for jury selection, the plaintiff, via substitute counsel, nonetheless filed an affidavit of actual engagement and indicated that plaintiff's counsel was not ready to proceed. The court thereafter dismissed the action. Under such circumstances,



the court's dismissal of the complaint pursuant to 22 NYCRR 125.1 (f) also was an improvident exercise of discretion (citations omitted). Accordingly, we remit the matter to the Supreme Court, Orange County, before a different Justice, for further proceedings consistent herewith.

See also Guttilla v. Peppino’s Food,Inc., 2015 NY Slip Op 00845 (2d Dep’t 2015)

ii. Bifurcated Trials Matthew H. v County of Nassau, 131 A.D.3d 135, 14 N.Y.S.3d 38 (2d Dep’t 2015); Patino v County of Nassau, 124 A.D.3d 738, 3 N.Y.S.3d 43 (2d Dep’t 2015) 22 NYCRR 202.42, applicable in the Supreme and County Courts, provides that

“Judges are encouraged to order a bifurcated trial of the issues of liability and damages in

any action for personal injury where it appears that bifurcation may assist in a

clarification or simplification of issues and a fair and more expeditious resolution of the

action.” Bifurcation is strongly encouraged in the Second Department (Matthew H.).

But unified trials – liability and damages tried together – are permissible (indeed,

sometimes required) in certain circumstances. Unified trials are appropriate where the

nature of the plaintiff’s injuries has an important bearing on the issue of liability.

“[W]hen exercising its discretion in deciding whether to conduct a unified trial or a

bifurcated trial, a court should determine whether the nature of the alleged injuries is

probative of the issue of liability and, furthermore, should also evaluate the relative

importance of such evidence to the parties' dispute. In addition, the probative value of

such evidence to the issue of liability and its centrality to the parties' dispute should be

weighed against the degree to which the gravity of such injuries will likely engender

sympathy for the plaintiff and thereby pose a risk of prejudice to the defendant” (Patino,

124 A.D.3d at 740, 3 N.Y.S.3d at 45-46 [internal citations omitted]).



iii. Jurors

Court’s Failure To Designate Alternates Pursuant To CPLR 4105 Requires New Trial Piacente v Bernstein, 127 AD3d 1365, 6 NYS3d 793 (3d Dep’t 2015) CPLR 4105 provides that “[t]he first six persons who appear as their names are

drawn and called, and are approved as indifferent between the parties, and not discharged

or excused, must be sworn and constitute the jury to try the issue.” The statute therefore

requires a trial court to use designated alternates. The parties may consent to the use of

non-designated alternates, a protocol that results in the trial and alternate jurors being

randomly selected by the court at the close of the evidence (see 22 NYCRR 220.1[a],

[c]). In Piacente, the trial court, following a rule of the Third Judicial District that

required deliberating jurors to be chosen randomly by the court (i.e., the non-designated-

alternate-selection method), tapped juror numbers one, two, three, four, five, and eight to

be the deliberating jurors. Under the CPLR 4105 method, juror number eight would have

been relegated to “alternate” status, while juror number six would have joined the

deliberating jurors. The jury returned a verdict in favor of the defendants. The Third

Department affirms an order of the trial court granting the plaintiff’s CPLR 4404 motion

for a new trial; the use of the non-designated-alternates method deprived the plaintiff of

his substantial, statutory right to designated alternates.

XI. Ethical Issues

a. Ethical Issues In Deposition Practice

1. Deposition Rules

§ 221.1. Objections at depositions (a) Objections in general. No objections shall be made at a deposition



except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed and except in compliance with subdivision (e) of such rule. All objections made at a deposition shall be noted by the officer before whom the deposition is taken and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR. (b) Speaking objections restricted. Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning. § 221.2. Refusal to answer when objection is made A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefor. If the deponent does not answer a question the examining party shall have the right to complete the remainder of the deposition . § 221.3. Communication with the deponent An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly.

2. CPLR 3116 Corrections

Once a deponent has given oral testimony at deposition, the deponent has the

opportunity to review the transcript for accuracy and make changes. CPLR 3116(a)

provides:

R 3116. Signing deposition; physical preparation; copies



(a) Signing. The deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness before any officer authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination. The language of the rule is straightforward, “and any changes in form or

substance which the witness desires.” What is required when a witness makes changes is

“a statement of the reasons given by the witness for making them.”

The 1996 Recommendation of the Advisory Committee on Civil Practice stated:

The Committee recommends the amendment of CPLR 3116(a) to require that a deponent make any changes he or she wishes to make to the transcript within sixty days from the date the deposition is submitted to the witness. Changes that are substantive, even potentially outcome determinative, are

permitted. In Natale v. Woodcock, 35 A.D.3d 1128, 830 N.Y.S.2d 785 (3d Dep’t 2006),

plaintiff contended the collision with defendant’s vehicle, at night, occurred in part

because defendant’s vehicle’s headlights were not on. Defendant made changes to the

transcript of his deposition testimony:

[D]efendant was asked two separate times whether his headlights were on and both times responded, "I don't believe so." Thereafter, he supplied an errata sheet in compliance with CPLR 3116 (a), correcting one of the responses to: "Yes, my headlights were on." The reason provided for the correction was that "[a]fter reading the statement, it came back to me." The Third Department addressed these deposition changes in the context of a

motion for summary judgment, made by defendant, and relying on the changed

deposition testimony. Reversing the trial court’s denial of defendant’s motion, the

appellate court held:



Even overlooking the fact that defendant corrected only one of his statements from his deposition regarding his headlights, summary judgment should not have been granted. Where, as here, there is a significant conflict on a material issue between the original deposition testimony and the correction on the errata sheet a credibility issue is created that cannot be resolved by summary judgment (citations omitted). The explanation offered for the change was insufficient to extinguish the factual issue. So, the takeaway from Natale is that significant changes to testimony are

permitted, but the original answer remains as part of the record, thus creating a credibility

issue between the original and changed testimony, the credibility issue must be resolve by

the factfinder.

This was also the case in Breco Envtl. Contrs. Inc. v. Town of Smithtown, 31

A.D.3d 359, 818 N.Y.S.2d 2444 (2d Dep’t 2006), where the Second Department held that

defendant’s motion for summary judgment was properly denied due to credibility issues

arising from changes plaintiff made to his deposition transcript:

[Plaintiff] testified at his deposition that although he signed the document he had no affirmative recollection of having ever reviewed the document or of personal knowledge of the basis for the claim. Shortly thereafter [plaintiff] furnished an errata sheet in accordance with CPLR 3116 (a), in which he corrected the substance of his deposition testimony, claiming that after refreshing his recollection about a meeting he attended before preparation of the notice of claim, he now recalled that he had adequate knowledge about the basis of the claim and had in fact reviewed the document before he signed it. So, per Breco, a witness whose recollection is refreshed after the deposition may

furnish changes to the testimony based upon that refreshed recollection.

The First Department in Cillo v. Resjefal Corp., 295 A.D.2d 257, 743 N.Y.S.2d

860 (1st Dep’t 2002), permitted “substantive” changes that were accompanied by a

statement of the reason for the changes:

Defendant's motion to strike plaintiffs' amended errata sheets or for further depositions was properly denied since a witness may make substantive changes to his or her deposition testimony provided the changes are accompanied by a



statement of the reasons therefor (citations omitted). Plaintiffs' amended errata sheets are accompanied by such a statement. The changes raise issues of credibility that do not warrant further depositions but rather should be left for trial (citations omitted). Cillo makes clear that resolving the credibility issue created by the deponents

deposition transcript changes is for the finder of fact.

The right to make changes to deposition testimony was recognized before the

enactment of CPLR 3116(a). In Skeaney v.Silver Beach Realty Corp., 10 A.D.2d 587,

201 N.Y.S.2 163 (1st Dep’t 1960), decided under the C.P.A., predecessor to the C.P.L.R.,

the First Department held:

The right to make corrections or changes in the testimony is recognized by decision (citation omitted) and is implicit in the statute (citation omitted) by the requirement that "[the] deposition, when completed, must be read by, or carefully read to, the person examined and must be subscribed by him." Although the C.P.A. did not explicitly permit changes to the deposition transcript

by the deponent, the First Department in Van Son v. Herbst, 215 A.D. 563, 214 N.Y.S.

272 (1st Dep’t 1926), that right was inherent in the requirement that the transcript be

reviewed by the witness:

That he must do so without making such changes in it as are properly to be made, in order to have it conform to his more deliberate recollection of the facts, is not directed by the rule. Otherwise there would be no need of having the transcribed testimony read before it is signed. It is read so that corrections may be made and we see no changes, such as plaintiff might not properly have caused to be made. Indeed the new matter would have to be very remarkable or quite unresponsive and unjustified by the questions to require its exclusion. Where the deponent makes changes to the transcript but fails to give a reason for

the changes, the changes will not be considered by the court:

The IAS Court properly refused to consider plaintiff's correction sheet to her deposition testimony, in which she claimed that the hole over which she tripped was in the street and not, as she had testified, on the sidewalk in front of the house owned by defendants, on the ground that the correction sheet lacked a statement of the reasons for making the corrections (CPLR 3116 [a]). Nor are we persuaded



by the reason that was offered in plaintiff's opposition to the motion, that she has difficulty communicating in English. The record shows that plaintiff testified through an interpreter whose adequacy was never challenged by her lawyer, acknowledged having fallen in the street more than on the single occasion that she wants to correct, and fully comprehended the questions posed to her. Rodriguez v. Jones, 227 A.D.2d 220, 642 N.YS.2d 267 (1st Dep’t 1996) In Dima v. Morrow St. Assoc., 31 A.D.3d 697, 818 N.Y.S.2d 474 (2d Dep’t

2006), the Second Department held that “the Supreme Court properly declined to

consider the plaintiff's correction sheet to her deposition testimony which lacked a

statement of the reasons for making the corrections (citations omitted).

CPLR 3116(a) requires timely submission of deposition changes: “No changes to

the transcript may be made by the witness more than sixty days after submission to the

witness for examination.” Quoting Professor Siegel, the First Department in Zamir v.

Hilton Hotels, Inc., 304 A.D.2d 493, 758 N.Y.S.2d 645 (1st Dep’t 2003), discussed the

reason for the sixty day requirement:

As further noted in the Practice Commentary, "[a]ccording to the Advisory Committee, the statutory purpose of imposing the 60-day restriction in the first place is to enable other parties, including the party who took the deposition, 'to rely upon the deposition as final,' an aim that would be frustrated by '[l]ast-minute changes.'" (citation omitted) We agree that courts should be circumspect about extending the 60-day period inasmuch as "[a]n indication from the courts that an extension will be allowed without a strong showing of justification will quickly evolve a dilatory attitude that can undermine the purpose of CPLR 3116 (a)'s time limit altogether" (citations omitted).

The Zamir Court noted that an extension of the sixty day period would require a

showing of good cause, which plaintiff failed to provide:

the 60-day period, not being a rigid statute of limitations, is presumably extendable pursuant to CPLR 2004 (citations omitted). Nevertheless, CPLR 2004, while giving courts discretion to extend nearly all time limits in the CPLR for doing "any act," nevertheless premises such relief upon a showing of good cause.



A slight delay in furnishing a deposition errata sheet was excused by the First

Department in Binh v. Bagland USA, Inc., 286 A.D.2d 613, 730 N.Y.S.2d 317 (1st Dep’t

2001):

The motion court, stating its preference for disposing of cases on the merits, properly exercised its discretion in forgiving plaintiff's slight delay in furnishing the errata sheet (see, CPLR 3116 [a]; 2004), and correctly ruled that the conflict between the original deposition testimony and the errata sheet raised an issue of credibility inappropriate for summary judgment treatment. Upon this record, plaintiff's deposition correction does not appear to be patently untrue or tailored to avoid the consequences of his earlier testimony, made as it was before defendants moved for summary judgment (citation omitted).

No Reason For Deposition Correction Precludes Consideration of Revised Testimony Vazquez v Flesor, 128 A.D.3d 808, 9 N.Y.S.3d 150 (2d Dep’t 2015)

As to the merits, the defendant established his prima facie entitlement to judgment as a matter of law on the ground that the plaintiff was unable to identify the cause of his accident (citations omitted). In support of his motion, the defendant submitted, inter alia, a transcript of the deposition testimony of the plaintiff, who testified that he did not know why Lopez tripped. The defendant also submitted a transcript of the deposition testimony of Lopez, who similarly testified that he did not know what caused him to fall. Although Lopez later amended his testimony in a post-deposition errata sheet to reflect that he tripped over a garden hose, he failed to offer any reason for materially altering the substance of his deposition testimony. Therefore, the amended testimony could not properly be considered (citation omitted). Accordingly, contrary to the plaintiff’s contention, Lopez’s deposition testimony did not reveal a triable issue of fact as to whether the plaintiff was unable to identify the cause of his fall (citation omitted).

Trial Court Properly Struck Deposition Errata Sheet For Failing To Provide Adequate Reason For Change S.E.M. Sec. Sys., Inc. v. Earl Lorence Enters., 120 A.D.3d 1211, 99 N.Y.S.2d 539 (2d Dep’t 2014)

However, upon reargument, the Supreme Court properly adhered to its determination granting the plaintiff's application to strike an errata sheet attached to the transcript of the deposition of the defendant Scott Lorrance, since the defendant did not provide adequate reasons for the proposed changes to his deposition testimony (citation omitted).



The timing of the submission of depositions corrections, vis a vis the making of a motion for summary judgment by an adverse party, is a critical issue when the claim is that the errata sheet or an affidavit submitted in opposition is feigned or tailored.

Changes to Deposition Testimony Due to Pre-EBT Review of Incorrect Photographs Not Permitted Horn v. 197 5th Ave. Corp., 2014 NY Slip Op 08605 (2d Dep’t 2014)

The plaintiff commenced this action against the defendants to recover damages for injuries she sustained when she allegedly tripped and fell over a sidewalk cellar door adjacent to the defendants' property at 197 Fifth Avenue in Brooklyn. However, at her deposition, the plaintiff repeatedly testified in great detail that she tripped and fell at 140 Fifth Avenue, a location which was approximately two to three blocks away and on the other side of the street from the defendants' property. The plaintiff thoroughly described the route she took and the direction and distance she traveled that brought her to the site of her accident, as well as the name and address of the business at 140 Fifth Avenue where she fell. Moreover, she testified that she confirmed the address of the location by visiting the site of her accident a few days later, at which time she wrote down the address, and she circled on a photograph of the cellar door at 140 Fifth Avenue the spot on which she claimed to have tripped. Notwithstanding the detailed, consistent, and emphatic nature of the plaintiff's deposition testimony regarding the location of her accident, she subsequently executed an errata sheet containing numerous substantive "corrections" which conflicted with various portions of her testimony and which sought to establish that she actually fell at 197 Fifth Avenue, not 140 Fifth Avenue. The only reason proffered for these changes was that, prior to her deposition, she was shown photographs of 140 Fifth Avenue that mistakenly had been taken by an investigator hired by her attorney, and that she thereafter premised her testimony on her accident having occurred at the location depicted in those photographs. The defendants Li Xing Hellen Weng and Sun Luck Restaurant, Inc., moved, and the defendant 197 5th Avenue Corp. separately moved, to strike the errata sheet and for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied the motions. We reverse. Contrary to the determination of the Supreme Court, the plaintiff failed to provide an adequate reason for the numerous, critical, substantive changes she sought to make in an effort to materially alter her deposition testimony (citations omitted).



CPLR 3116(a): Witness May Make Significant Changes To Deposition Transcript Lieblich v Saint Peter’s Hosp. of the City of New York, 112 A.D.3d 1202, 977 N.Y.S.2d 780 (3d Dep’t 2013)

CPLR 3116(a) provides that a witness may make a change to the form or substance of his or her deposition testimony by noting the change at the end of the transcript and providing a statement of the reasons for making the change. Even significant changes are permitted so long as the witness provides a reason why the changes are necessary. The Court in Lieblich holds that a witness who makes significant changes to his or her deposition in the errata sheet of the transcript may be required to appear for a further deposition.

CPLR 3116: No Corrections Due to Nervousness Ashford v. Tannenhauser, 108 A.D.3d 735 (2d Dep’t 2013)

The plaintiff Kenneth Ashford (hereinafter the injured plaintiff), and his wife suing derivatively, commenced this action sounding in ordinary negligence to recover damages for injuries he sustained when he fell from a ladder while attempting to gain access to a shelf at the plumbing business where he worked. At his deposition, the injured plaintiff testified that he used a straight, 10–foot–tall aluminum ladder to gain access to the shelf, which was 12 to 15 feet above the ground. He further indicated that the feet of the ladder were equipped with rubber pads, and that there was no problem with either the feet or the pads. Before ascending the ladder, he made sure that the rubber pads were flat on the ground, and that the ladder was stable and safe. The injured plaintiff further testified that he climbed to the top of the ladder and that it “walked out [or] slid out from under [him]” as he prepared to place his left foot on the shelf. According to the injured plaintiff, his employer, North Shore Plumbing Supply, Inc. (hereinafter North Shore), was the owner of the ladder. The injured plaintiff had “no idea” why the ladder slid out from under him. In support of their motion for summary judgment dismissing the complaint, the defendants, all of whom were named herein in their capacities as cotrustees of a trust established for the benefit of Max Tannenhauser (hereinafter the trust), relied upon the foregoing deposition testimony of the injured plaintiff, as well as, inter alia, the affidavit of the defendant Robert Tannenhauser. That affidavit demonstrated that, at the time of the accident, the property at which the plumbing business was operated was owned by the trust as an out-of-possession landlord. The defendants also submitted a lease reflecting that the premises were occupied by North Shore, which was obligated, with certain exceptions not relevant herein, to perform all required repairs. Additionally, Robert Tannenhauser averred that the subject trust neither owned nor furnished any ladders at the premises, and did not maintain any of the flooring at the property.



Based on the foregoing, the defendants made a prima facie showing of their entitlement to judgment as a matter of law on the ground that they did not own or control the ladder in question and had no duty to maintain the floor at the premises (citation omitted) and that, in any event, the injured plaintiff was unable to identify any defect that caused his fall (citations omitted). In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been “nervous” during his deposition. CPLR 3116(a) provides that a “deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them.” Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall (citations omitted). In the absence of the proposed alterations, the injured plaintiff's deposition testimony was insufficient to raise a triable issue of fact with respect to the defectiveness or inadequacy of the ladder so as to warrant the denial of summary judgment. Likewise, in opposition to the defendants' prima facie showing that the trust was an out-of-possession landlord with no duty to repair or maintain the ladder or the floor, the plaintiffs failed to raise a triable issue of fact. Therefore, the Supreme Court erred in denying the defendants' motion for summary judgment dismissing the complaint.

b. Ethical Issues In Electronic Disclosure

i. New York Rules Of Professional Conduct

RULE 1.1: Competence (a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it. (c) lawyer shall not intentionally:

1. (1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or

2. (2) prejudice or damage the client during the course of the representation except as permitted or required by these Rules.



ii. ABA Opinion On Viewing Juror Internet Postings AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY Formal Opinion 466 April 24, 2014 Lawyer Reviewing Jurors’ Internet Presence

iv. Confidentiality Of Remotely Stored ESI Rules Of Professional Conduct

R 1.6. Confidentiality of information

• (a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless: (1) the client gives informed consent, as defined in Rule 1.0(j); (2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or (3) the disclosure is permitted by paragraph (b)."Confidential information" consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. "Confidential information" does not ordinarily include (i) a lawyer's legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates. (b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime; (3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud; (4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer's firm or the law firm; (5) (i) to defend the lawyer or the lawyer's employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or (6) when permitted or required under these Rules or to comply with other law or court order.



(c) A lawyer shall exercise reasonable care to prevent the lawyer's employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.

Conversion Cause Of Action LM Bus Assoc., Inc. v. State Of New York, 124 A.D.3d 1215, 999 N.Y.S.2d 619 (4th Dep’t 2015)

Defendant appeals from a judgment, entered following a nonjury trial on the issue of liability, in which the Court of Claims determined that defendant is liable to claimants for conversion and negligent misrepresentation. In 2000 and 2001, the State Insurance Fund, the State Police, and the Workers' Compensation Board conducted an investigation into suspected fraudulent activities by a group of affiliated businesses, including claimants, that were owned and operated in the Village of Palmyra, Wayne County, by, inter alia, nonparty Mark Boerman. As part of that investigation, a State Police investigator sought a warrant to search claimants' offices and to seize any relevant evidence found therein. Attached to the warrant application was an appendix that, inter alia, set forth certain general considerations for determining whether any particular computer within the purview of the warrant would be "remove[d] from the premises" for "process[ing] by a qualified computer specialist in a laboratory setting," or whether it would be analyzed on site without the need for removal therefrom. County Court (Sirkin, J.) granted the application in full and issued the warrant on April 4, 2001, and the warrant was executed the next day. Insofar as relevant on appeal, a number of computers were seized from claimants' premises. It is undisputed that those computers were integral to the operation of claimants' businesses. Over one year later, in September 2002, Boerman was indicted on 19 counts of offering a false instrument for filing in the first degree (Penal Law § 175.35) and 19 counts of workers' compensation fraud (Workers' Compensation Law § 114). Boerman thereafter pleaded guilty in March 2003 to one count of offering a false instrument for filing in the first degree in full satisfaction of the indictment, and he was sentenced to probation. Claimants were never charged. Following his sentencing, Boerman moved for an order in County Court for the return of the seized computers. The motion was granted in April 2003, and County Court directed that the computers be returned to Boerman "as soon as practicable." The computers were returned within several months. Notably, despite the allegation that claimants' businesses failed in 2001 because they did not have their necessary computers, neither Boerman nor claimants had previously filed an application seeking the return of the seized computers. Claimants thereafter commenced the instant action seeking damages for, inter alia, conversion of the seized computers, negligent misrepresentation, and



constitutional tort (citation omitted). The cause of action for negligent misrepresentation stemmed from statements allegedly made by various State agents, at the time of the warrant's execution and in the days thereafter, in which they supposedly promised Boerman and his attorney that the computers would be returned expeditiously as soon as the necessary data was copied. Following a nonjury trial, the Court of Claims rendered an interlocutory judgment in claimants' favor on the issue of liability with respect to the causes of action for conversion and negligent misrepresentation, with damages to be determined following a trial. The court did not reach the cause of action for constitutional tort inasmuch as it held that claimants' injuries were adequately compensated by imposing liability for conversion and negligent misrepresentation. We now reverse the judgment insofar as appealed from and dismiss the amended claim. The court erred in granting judgment to claimants on the issue of liability for conversion. An actionable "conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" (citations omitted). Here, a search warrant specifically authorized law enforcement to "search for and seize" six categories of items, including "[a]ll computers and computer storage media and related peripherals, electronic or computer data." Claimants have never challenged the validity of the search warrant. Moreover, the unchallenged warrant placed no time limit on the retention of the items seized, and the authorization to "seize" the computers was not terminated until County Court ordered the property returned following Boerman's guilty plea. We therefore conclude that defendant's exercise of control over the computers did not constitute conversion inasmuch as it had the proper authority to exercise such control (citations omitted) is distinguishable from the instant case because, in that case, the State seized and held the claimant's property pursuant to an invalid warrant. We reject claimants' contention that the warrant authorized only a "limited" detention of the computers until their contents could be copied by law enforcement. No such language is found in the warrant itself and, while the warrant incorporated the appendix, nothing in the appendix states or even implies that any seized computer would be returned expeditiously to its owner or that any forensic analysis of its contents would be conducted immediately following the execution of the warrant (citation omitted). We therefore further conclude that defendant cannot be held liable for conversion for holding the computers beyond the authority granted by the warrant. We also reject claimants' alternative contention that, irrespective of the terms of the warrant itself, "the initial valid seizure of the computers [turned into an unlawful conversion once the purpose for which the equipment was seized came to an end." It is well established that property seized pursuant to a court order is held "in the custody of the law, and [it] cannot be taken away until that custody is ended by a conviction or acquittal, or by an order of the magistrate permitting its surrender to the owner" (citation omitted). In other words, "property seized



pursuant to a search warrant remains in the control of the issuing judge" (citation omitted). Therefore, even if the seized computers were retained without any legitimate law enforcement purpose, "it was beyond the power of [defendant] to take the property from the custody of the law" and return it to claimants without proper judicial authorization (citation omitted). Claimants therefore may not recover against defendant for conversion under the circumstances presented here (citation omitted).

Social Media

PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 14-1 June 25, 2015

Advisory ethics opinions are not binding.

A personal injury lawyer may advise a client pre-litigation to change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved. Note: This opinion was approved by The Florida Bar Board of Governors on October 16, 2015. RPC: 4-3.4(a) Opinions: New York County Ethics Opinion 745; North Carolina Formal Ethics

Opinion 5; Pennsylvania Bar Association Opinion 2014-300; Philadelphia Bar Association Professional Guidance Committee Opinion 2014-5

Cases: Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013); Gatto v. United Airlines, 2013 WL 1285285, Case No. 10-cv-1090-ES-SCM (U.S. Dist. Ct. NJ March 25, 2013); In the Matter of Matthew B. Murray, 2013 WL 5630414, VSB Docket Nos. 11-070-088405 and 11-070-088422 (Virginia State Bar Disciplinary Board July 17, 2013); Romano v. Steelcase, Inc. 907 N.Y.S.2d 650 (NY 2010); Root v. Balfour Beatty Construction, Inc.,132 So.3d 867, 869-70 (Fla. 2nd DCA 2014)

Misc.: Guideline No. 4.A, Social Media Ethics Guidelines, New York State Bar Association’s Commercial and Federal Litigation Section

A Florida Bar member who handles personal injury and wrongful death cases has asked the committee regarding the ethical obligations on advising clients to “clean up” their social media pages before litigation is filed to remove embarrassing information that the lawyer believes is not material to the litigation matter. The inquirer asks the following 4 questions:



• • 1) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and

information from social media pages/accounts that are related directly to the incident for which the lawyer is retained? 2) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are not related directly to the incident for which the lawyer is retained? 3) Pre-litigation, may a lawyer advise a client to change social media pages/accounts privacy settings to remove the pages/accounts from public view? 4) Pre-litigation, must a lawyer advise a client not to remove posts, photos, videos and information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access?

Rule 4-3.4(a) is applicable and states as follows: A lawyer must not: (a) unlawfully obstruct another party's access to evidence or

otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act; The comment to the rule provides further guidance: The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed, or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Subdivision (a) applies to evidentiary material generally, including computerized information.

Under these facts, the proper inquiry is whether information on a client’s social media page is relevant to a “reasonably foreseeable proceeding,” rather than whether information is “related directly” or “not related directly” to the client’s matter. Information that is not “related directly” to the incident giving rise to the need for legal representation may still be relevant. However, what is relevant requires a factual, case-by-case determination. In Florida, the second District Court of Appeal has determined that normal discovery principles apply to social media, and that information sought to be discovered from social media must be “(1) relevant to the case's subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court.” Root v. Balfour Beatty Construction, Inc.,132 So.3d 867, 869-70 (Fla. 2nd DCA 2014). What constitutes an “unlawful” obstruction, alteration, destruction, or



concealment of evidence is a legal question, outside the scope of an ethics opinion. The committee is aware of cases addressing the issue of discovery or spoliation relating to social media, but in these cases, the issue arose in the course of discovery after litigation commenced. See, Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) (Sanctions of $542,000 imposed against lawyer and $180,000 against the client for spoliation when client, at lawyer's direction, deleted photographs from client's social media page, the client deleted the accounts, and the lawyer signed discovery requests that the client did not have the accounts); Gatto v. United Airlines, 2013 WL 1285285, Case No. 10-cv-1090-ES-SCM (U.S. Dist. Ct. NJ March 25, 2013) (Adverse inference instruction, but no monetary sanctions, against plaintiff who deactivated his social media accounts, which then became unavailable, after the defendants requested access); Romano v. Steelcase, Inc. 907 N.Y.S.2d 650 (NY 2010) (Court granted request for access to plaintiff's MySpace and Facebook pages, including private and deleted pages, when plaintiff's physical condition was at issue and information on the pages is inconsistent with her purported injuries based on information about plaintiff's activities available on the public pages of her MySpace and Facebook pages). In the disciplinary context, at least one lawyer has been suspended for 5 years for advising a client to clean up the client’s Facebook page, causing the removal of photographs and other material after a request for production had been made. In the Matter of Matthew B. Murray, 2013 WL 5630414, VSB Docket Nos. 11-070-088405 and 11-070-088422 (Virginia State Bar Disciplinary Board July 17, 2013). The New York County Lawyers Association has issued NYCLA Ethics Opinion 745 (2013) addressing the issue. The opinion concludes that lawyers may advise their clients to use the highest level of privacy settings on their social media pages and may advise clients to remove information from social media pages unless the lawyer has a duty to preserve information under law and there is no violation of law relating to spoliation of evidence. Other states have since come to similar conclusions. See, e.g., North Carolina Formal Ethics Opinion 5 (attorney must advise client about information on social media if information is relevant and material to the client’s representation and attorney may advise client to remove information on social media if not spoliation or otherwise illegal); Pennsylvania Bar Association Opinion 2014-300 (attorney may advise client to delete information from client’s social media provided that this does not constitute spoliation or is otherwise illegal, but must take appropriate action to preserve the information); and Philadelphia Bar Association Professional Guidance Committee Opinion 2014-5 (attorney may advise a client to change the privacy settings on the client’s social media page but may not instruct client to destroy any relevant content on the page). Subsequent to the publication of the opinion, the New York State Bar Association’s Commercial and Federal Litigation Section adopted Social Media Ethics Guidelines. Guideline No. 4.A, citing to the opinion, states as follows: A lawyer may advise a client as to what content may be maintained or made



private on her social media account, as well as to what content may be “taken down” or removed, whether posted by the client or someone else, as long as there is no violation of common law or any statute, rule, or regulation relating to the preservation of information. Unless an appropriate record of the social media information or data is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve. [Footnote omitted.] The committee agrees with the NYCLA that a lawyer may advise a client to use the highest level of privacy setting on the client’s social media pages. The committee also agrees that a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence. The committee is of the opinion that if the inquirer does so, the social media information or data must be preserved if the information or data is known by the inquirer or reasonably should be known by the inquirer to be relevant to the reasonably foreseeable proceeding. The committee is of the opinion that the general obligation of competence may require the inquirer to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding preservation of evidence, regardless of the privacy settings. If a client specifically asks the inquirer regarding removal of information, the inquirer’s advice must comply with Rule 4-3.4(a). What information on a social media page is relevant to reasonably foreseeable litigation is a factual question that must be determined on a case-by-case basis. In summary, the inquirer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the inquirer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved.

Discovery of Facebook Warranted, But Trial Court Order Overbroad Spearin v. Linmar, L.P., 129 A.D.3d 528, 11 N.Y.S.3d 156 (1st Dep’t 2015)

Defendant established a factual predicate for discovery of relevant information from private portions of plaintiff’s Facebook account by submitting plaintiff’s public profile picture from his Facebook account, uploaded in July 2014, depicting plaintiff sitting in front of a piano, which tends to contradict plaintiff’s testimony that, as a result of getting hit on the head by a piece of falling wood in July 2012, he can longer play the piano (citation omitted). However, the direction to plaintiff to provide access to all of his post-accident Facebook postings is



overbroad. We remand for an in camera review of plaintiff’s post-accident Facebook postings for identification of information relevant to his alleged injuries (citation omitted). See, A.D. v C.A., ___A.D.3d___, 16 N.Y.S.3d 126 (Sup Ct, Westchester Cty. 2015) (Reviewing discoverability of social media evidence in matrimonial action on issue of child custody)

Parties in civil actions are often interested in disclosure of other parties’ social

media postings (e.g., Facebook, LinkedIn, Twitter, etc.). Maybe some entries or pictures

on a party’s social media site will contain information that is relevant to the incident(s)

giving rise to the lawsuit, the issue of a tort plaintiff’s damages, or both. When is a party

permitted to disclosure of another party’s social media postings? The party seeking

disclosure must establish some factual predicate for a request for such disclosure -- some

showing that the postings contradict or conflict with the social media poster’s allegations

in the lawsuit. If there is a factual predicate for disclosure of a party’s social media

postings but some suggestion that the postings also contain information that is unrelated

to the incident(s) or the poster’s potential damages, the court may review in camera the

social media materials and release only those it deems material and necessary to the

prosecution or defense of the action (see Richards v Hertz Corp., 100 A.D.3d 728, 953

N.Y.S.2d 654 [2d Dep’t 2012]). In such a situation, a court could also consider requiring

the disclosing party’s counsel to perform an initial review of the materials, limiting in

camera review to those materials counsel does not consent to revealing to the other party

(see Nieves v 30 Ellwood Realty LLC, 39 Misc.3d 63, 966 N.Y.S.2d 808 [App Term,1st

Dep’t 2013]).

N.B.: How can a party obtain information to form a factual predicate for social media

disclosure? The party can look at any publicly available materials on the other party’s



social media sites (see Spearin, above), and ask questions about the content (both public

and private) of the sites during the poster’s deposition (see Hon. Mark Dillon, Discovery

of Private Social Media Postings, April 9, 2013 New York Law Journal).

In Three To Two Decision, First Department Holds In Camera Review Of Social Media Discretionary Foreman v. Henkin, 2015 NY Slip Op 09350 (1st Dep’t 2015)

Order, Supreme Court, New York County (Lucy Billings, J.), entered March 19, 2014, which, to the extent appealed from as limited by the briefs, granted defendant's motion to compel to the extent of directing plaintiff to produce all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial, all photographs of plaintiff privately posted on Facebook after the accident that do not show nudity or romantic encounters, and authorizations for defendant to obtain records from Facebook showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages, modified, on the law and the facts, to vacate those portions of the order directing plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial, and authorizations related to plaintiff's private Facebook messages, and otherwise affirmed, without costs. In this personal injury action, plaintiff alleges that while riding one of defendant's horses, the stirrup leather attached to the saddle broke, causing her to lose her balance and fall to the ground. Plaintiff claims that defendant was negligent because, inter alia, he failed to properly prepare the horse for riding, and neglected to maintain and inspect the equipment. Plaintiff alleges that the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities. At her deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after. Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates and instant messages. The motion court granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after [3] the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages. Plaintiff now appeals.



CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." In determining whether the information sought is subject to discovery, "[t]he test is one of usefulness and reason" (citation omitted). " It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims'" (citations omitted). Discovery demands are improper if they are based upon " hypothetical speculations calculated to justify a fishing expedition'" (citations omitted). This Court has consistently applied these settled principles in the context of discovery requests seeking a party's social media information. For example, in Tapp v New York State Urban Dev. Corp. (citation omitted), we denied the defendants' request for an authorization for the plaintiff's Facebook records, concluding that the mere fact that the plaintiff used Facebook was an insufficient basis to provide the defendant with access to the account. Likewise, in Pecile v Titan Capital Group, LLC (citation omitted), we concluded that vague and generalized assertions that information in the plaintiff's social media sites might contradict the plaintiff's claims of emotional distress were not a proper basis for disclosure (citation and parenthetical omitted). Other Departments of the Appellate Division, consistent with well-established case law governing disclosure, have required some threshold showing before allowing access to a party's private social media information (citations and parentheticals omitted). Guided by these principles, we conclude that defendant has failed to establish entitlement to either plaintiff's private Facebook photographs, or information about the times and length of plaintiff's private Facebook messages. The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information (citation and parenthetical omitted). Likewise, defendant's speculation that the requested information might be relevant to rebut plaintiff's claims of injury or disability is not a proper basis for requiring access to plaintiff's Facebook account (citations and parentheticals omitted). However, in accordance with standard pretrial procedures, plaintiff must provide defendant with all photographs of herself posted on Facebook, either before or after the accident, that she intends to use at trial. Plaintiff concedes that she cannot use these photographs at trial without having first disclosed them to defendant. We disagree with the dissent's position that we should reconsider the well-settled body of case law, from both this Court and other Departments, governing the disclosure of social media information. Both parties here agree with the general legal principles set forth in the existing case law and differ only as to the application of those principles to the specific facts of this case. Neither party asks us to revisit our controlling precedent, and the doctrine of stare decisis requires us to adhere to our prior decisions (citations omitted). Although we agree with the dissent that social media is constantly evolving, there is no reason to alter the



existing legal framework simply because the potential exists that new social network practices may surface. Furthermore, there is no dispute that the features of Facebook at issue here (i.e., the ability to post photographs and send messages) have been around for many years. Contrary to the dissent's view, this Court's prior decisions do not stand for the proposition that different discovery rules exist for social media information. The discovery standard we have applied in the social media context is the same as in all other situations — a party must be able to demonstrate that the information sought is likely to result in the disclosure of relevant information bearing on the claims (citation omitted). This threshold factual predicate, or "reasoned basis" in the words of the dissent, stands as a check against parties conducting "fishing expeditions" based on mere speculation )citations and parentheticals omitted). Although we agree with the dissent that the discovery standard is the same regardless of whether the information requested is contained in social media accounts or elsewhere, we disagree with the dissent's analysis as to how that standard should work in the personal injury context. According to the dissent, "[i]f a plaintiff claims to be physically unable to engage in activities due to the defendant's alleged negligence, posted information, including photographs and the various forms of communications (such as status updates and messages) that establish or illustrate the plaintiff's former or current activities or abilities will be discoverable." This view, however, is contrary to our established precedent holding otherwise (citations omitted). We are bound by principles of stare decisis to follow this prior precedent, particularly here where no party asks us to revisit it, and we believe that this precedent results in the correct outcome here. Taken to its logical conclusion, the dissent's position would allow for discovery of all photographs of a personal injury plaintiff after the accident, whether stored on social media, a cell phone or a camera, or located in a photo album or file cabinet. Likewise, it would require production of all communications about the plaintiff's activities that exist not only on social media, but in diaries, letters, text messages and emails. Allowing the unbridled disclosure of such information, based merely on speculation that some relevant information might be found, is the very type of "fishing expedition" that cannot be countenanced. Contrary to the dissent's view, there is no analogy between the defense litigation tool of surveillance video and the wholesale discovery of private social media information. The surveillance of a personal injury plaintiff in public places is a far cry from trying to uncover a person's private social media postings in the absence of any factual predicate. The question of whether a court should conduct an in camera review of social media information is not presented on this appeal. The court below did not order an in camera review, nor do the parties on appeal request any such relief. Further, the dissent is mistaken that our prior decisions in this area require a court to conduct an in camera review in all circumstances where a sufficient factual predicate is established. The decision whether to order an in camera review rests in the sound discretion of the trial court, or in this Court's discretion if we choose



to exercise it (citations omitted). The cases cited by the dissent in which an in camera review was directed stand simply for the proposition that those courts, in their discretion, believed that such review was appropriate. Finally, plaintiff's claim that the motion court erred in sua sponte ordering a physical and psychological examination of her is based on a misreading of the court's decision. As defendant acknowledges, the court did not grant such relief, but merely referenced the previously scheduled examination discussed at oral argument.

Applying Forman, Trial Court Holds Social Media Disclosure Requests Overbroad Medina v. City of New York, 2015 NY Slip Op 32429(U) (Sup. Ct., New York County 2015)

In this action arising from injuries to plaintiff in the course of his work at the East Side Access Project, defendants move to compel plaintiff to provide authorizations for the release of plaintiff's social media records from Facebook and Instagram.

BACKGROUND Plaintiff alleges that he was operating a drill machine on July 31, 2012 around 11:50 a.m., when the drill slipped on unsteady ground and pinned plaintiff against the wall, causing plaintiff to sustain permanent injuries. (Def. Opening Affirm. Ex. B [Complaint] at ¶148.) In addition to his physical injuries, plaintiff claims damages for a variety of mental injuries, including Post-traumatic Stress Disorder, "Loss of Social interest," "Loss of libido and loss of motivation," "Sadness," "Pessimism and Failure," "Loss of energy," "Concentration impairment," "Difficulty relaxing," "Fearing the worst happening." (Def. Opening Affirm. Ex. B [Verified Bill of Particulars] at 6.) Defendants argue that these claims place plaintiff's mental condition in controversy, and that they are thus entitled to discovery of any information relevant to these claims. At his continued deposition on March 13, 2015, plaintiff testified that he has a Facebook page and an Instagram account. (Def. Opening Affirm. Ex. G [Plaintiff's EBT], at 326-327.) By a demand dated March 23, 2015, defendants sought, among other things, "Duly executed, original authorization[sic] allowing release of the plaintiff's social media records from Facebook and Instagram." (Def. Opening Affirm. Ex. D [Disclosure Demand] at ¶ 7.) DISCUSSION CPLR 3101 states that there "shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." It has long been New York law that the words "material and necessary" are "to be interpreted liberally to



require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." (citation omitted). A party's "mere possession and utilization of a Facebook account is an insufficient basis to compel [that party] to provide access to the account or to have the court conduct an in camera inspection of the account's usage." (citation omitted) Rather, the Appellate Division, First Department has held that "[t]o warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account—that is, information that contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims." (citation omitted) In addition, the party seeking discovery must show "that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims." (citation omitted). Here, defendants submit printouts of the profile page of plaintiff's Facebook account, which is accessible to the general public, which shows thumbnails of some photographs posted to plaintiff's Facebook account. According to defendants, these photographs "depict the plaintiff wearing a marijuana gas mask, drinking a bottle of Corona while making a profane gesture with his middle finger towards the photographer, dressed in costume, and smiling and laughing in each photograph." (citation omitted) Defendants argue that not one of the publicly available images on plaintiff's Facebook profile page "depict a person who suffers from post-traumatic stress disorder, irritability, loss of social interests, or any of the other psychiatric conditions" alleged in plaintiff's bill of particulars. (citation omitted). The Court agrees with defendants that the thumbnail images from the profile page of plaintiff's Facebook account could be construed as contradicting or conflicting with plaintiff's alleged mental injuries; plaintiff does not dispute this. Instead, plaintiff objects to unrestricted access to plaintiff's social media accounts on the ground that such additional discovery would be cumulative, citing Winchell v Lopiccolo (citation omitted), because plaintiff asserts that defendants' private investigator has already uncovered at least 10 pages of materials from his Facebook account. (citation omitted) Moreover, plaintiff's counsel states, "[i]t cannot be overstated, this is not a case where the Plaintiff has a private, restricted access Facebook page warranting a court order for authorization." (citation omitted) In addition, plaintiff argues that defendants' requests are overbroad, and that simply because he has alleged damages for mental injuries does not mean that he is required to produce every thought he may have reduced to writing. (citation omitted). In reply, defendants argue that plaintiff misapplies the law in claiming that production of the private portions of his Facebook account would be cumulative. (citation omitted) Were such a defense of cumulativeness available, defendants



contend, movants would never be able to gain discovery of restricted-access social media accounts because supplying the required factual predicate—by pointing to portions of the public account that contradict the claim at issue—would make production of the private portions cumulative. In addition, defendants dispute plaintiff's counsel's representation that plaintiff does not have "'a private, restricted access Facebook page,'" noting that plaintiff's counsel makes this representation "without reference to an affidavit or testimony of anyone with personal knowledge as to plaintiff's use of privacy settings." (citation omitted) That there is an invitation at the top of plaintiff's Facebook profile stating "[t]o see what he [plaintiff] shares with friends, send him friend request" indicates, according defendants, that there is content on plaintiff's Facebook profile which is viewable to plaintiff's Facebook friends, but not viewable to defendants and the public. (Id.) Moreover, defendants contend that, if plaintiff's profile is truly open to public view, "plaintiff would have no objection to providing the subject authorization, because everything would already be visible." (citation omitted) Notwithstanding the factual predicate-shown for the Facebook account, the-blanket authorizations sought for the Facebook and Instagram accounts are unrestricted as to subject matter and time. (citation omitted) Therefore, they are overbroad. (citations and parentheticals omitted) The Court notes that plaintiff's attorney's representations about whether plaintiff has a restricted access Facebook account are hearsay at best and have no probative value. It would appear that this remains a proper subject for further discovery. Defendants have not established any factual predicate for discovery of plaintiff's Instagram account. This, too, can be addressed in discovery. The Court need not address the parties' remaining arguments. CONCLUSION Accordingly, it is hereby ORDERED that defendants' motion to compel discovery of the plaintiff's social media records from Facebook and Instagram is DENIED.