Mailing – CPLR 4518(a) February 21, 2018

Bank of Am., N.A. v Wheatley, 2018 NY Slip Op 01175 (2d Dept. 2018)

“The plaintiff failed to make the requisite showing. In support of its motion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day notice addressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. While mailing may be proved by documents meeting the requirements of the “business records exception” to the hearsay rule, Benight, in her affidavit, did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed”

I have to imagine this would be a mailing ledger or some other documentary proof showing that an item was mailed?  A little different than in the no-fault scenario


Facebook is discoverable upon a proper foundation February 19, 2018

Forman v Henkin, 2018 NY Slip Op 01015 (2018)

The Court has now laid the proper foundation that is required for Facebook material to be discoverable.  Based upon the below predicate, the following was noted:

(1) “That being said, we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable (see e.g. Kregg v Maldonado, 98 AD3d 1289, 1290 [4th Dept 2012] [rejecting motion to compel disclosure of all social media accounts involving injured party without prejudice to narrowly-tailored request seeking only relevant information]; Giacchettosupra, 293 FRD 112, 115; Kennedy v Contract Pharmacal Corp., 2013 WL 1966219, *2 [ED NY 2013]). Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation — such an order would be likely to yield far more nonrelevant than relevant information. Even under our broad disclosure paradigm, litigants are protected from “unnecessarily onerous application of the discovery statutes” (Kavanaughsupra, 92 NY2d at 954).

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules — there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate — for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

– – – – – – – – – –

“At her deposition, plaintiff indicated that, during the period prior to the accident, she posted “a lot” of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.”

Assume Plaintiff says she never posts photos.  Then, an offer of proof was be necessary to obtain disclosure – this is what I see here,

A 325(d) case outside the equity jurisdiction of supreme Court cannot be ruled upon by an Acting Supreme Court Justice February 19, 2018

Caffrey v North Arrow Abstract & Settlement Servs., Inc., 2018 NY Slip Op 01043 (2d Dept. 2018)

This is a fascinating case involving an Acting Supreme Court Justice’s equity jurisdiction when effectuating that role in the Civil Court in a 325(d) matter.  The agreed to facts are as follows:

“The parties agree that the initial transfer of the action to the Civil Court for trial pursuant to CPLR 325(d) was jurisdictionally erroneous and procedurally improper. The parties dispute whether the Supreme Court had the authority to retransfer the action to itself after the Civil Court judgment had already been entered. They also dispute the authority of the Supreme Court to, in effect, adopt the findings of fact and conclusions of law of the Civil Court trial judge and to concomitantly substitute the Civil Court judgment with a Supreme Court judgment based on the same trial proceeding.”

The court holds that a post-judgment re transfer (325[b]) is inappropriate, despite the reality that Supreme Court have legally assigned the case to Justice Liddy Marazzo in the first instance or, before trial, the case could have been moved out of Civil Court and then re-assigned to Justice Marazzo .  Very fascinating.

I like this part:

(1) “Nevertheless, a court should not take judicial notice of any court-generated document without affording the parties an opportunity to be heard on whether notice should be taken, and, if so, the significance of its content (see CPLR 4511[a], [b]; cf. Tirado v Miller, 75 AD3d 153, 160). In recognizing the potential centrality and significance of any order designating the Civil Court judge as an Acting Justice of the Supreme Court for this matter, we afforded the parties to this appeal an opportunity to submit simultaneous post-argument letter briefs on the issue and have considered their responses.

The determination of whether to judicially notice a court-generated document ultimately rests upon whether the document is reliable, the accuracy and veracity of which cannot be disputed. Court-generated orders from the Chief Administrative Judge, designating a jurist of one court as an acting jurist in another court, satisfy the requisite reliability, accuracy, and veracity as to be uncontestable for judicial notice. Consequently, in rendering our decision on this appeal, we recognize that as of January 5, 2012, Judge Marrazzo was designated as an Acting Justice of the Supreme Court.”

The Holding

“Here, Administrative Order 227/2012, of which we take judicial notice, and which designated Civil Court Judge Marrazzo as an Acting Justice of the Supreme Court, was not unrestricted and open-ended, but instead was subject by its expressed terms to a crucial limitation; namely, the judge was assigned “as an Acting Justice of the Supreme Court, to serve in the Supreme Court, Thirteenth Judicial District, Civil Term” (emphasis added).  Although Judge Marrazzo was not divested of his authority to function as a Civil Court judge in the Civil Court, the Administrative Order only permitted him to act in the additional capacity of Acting Justice of the Supreme Court for matters pending in the Supreme Court itself, having Supreme Court captions and index numbers. Conversely, Administrative Order 227/2012 did not address or confer Acting Supreme Court status on Judge Marrazzo to hear and adjudicate matters pending elsewhere, such as in the Civil Court. It is also beyond cavil that an Administrative Order cannot expand the subject matter jurisdiction of the Civil Court that does not otherwise exist under the State’s Constitution.

The result here is that another Supreme Court Justice not within the Civil Court should have re transferred the case prior to it beginning to Justice Marrazzo.

Failure to include order/judgment with declaration is fatal February 19, 2018

Active Chiropractic, P.C. v 21st Century Ins. Co., 2018 NY Slip Op 50200(U)(App. Term 2d Dept. 2018)

Many times the Court will write motion granted settled order, or include certain facts without “adjudging” or “declaring” the rights of the parts.

This case signifies the importance to obtain a signed and entered judgment setting forth the declarations to which you believe you are entitled when the occasion arises.  The defaulting defendant’s remedy is to open the DJ.

See below.

“With respect to defendant’s cross motion, as the December 8, 2014 Supreme Court order in the declaratory judgment action merely granted the branch of defendant’s motion for the entry of a default judgment against plaintiff and its assignor, but failed to make a statement declaring the rights of the parties involved (see Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984]; Suburban Bindery Equip. Corp. v Boston Old Colony Ins. Co., 150 AD2d 767 [1989]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), the Supreme Court order cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the action at bar”

The prologue here is that a judgment was eventually signed.

Avoiding the 120-day rule to make a summary judgment motion February 19, 2018

Active Chiropractic, P.C. v Allstate Ins., 2018 NY Slip Op 50201(U)(App. Term 2d Dept. 2018)

“Initially, we note that, although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), the motion was made after issue had been joined (see generally CPLR 3211 [e]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While the Civil Court never notified the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court, in effect, to treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).”

Upon finding the motion properly brought and timely, judgment on the unpleaded affirmative defense was granted.