DJ not collateral estoppel April 14, 2018

Active Care Med. Supply Corp. v Amica Mut. Ins. Co., 2018 NY Slip Op 50500(U)(App. Term 2d Dept. 2018)

The man who wrote the book glossed over the discussion of Magic Recovery in seeking to backdoor summary judgment win.  Sneaky.

“However, plaintiff herein was neither named nor served in the Supreme Court declaratory judgment action. Moreover, plaintiff was not in privity with the injured party, as the assignment of benefits had been executed before defendant commenced the declaratory judgment action. Thus, plaintiff had no full and fair opportunity to defend its interests in that action”

Meritorious defense not needed April 14, 2018

Naber Elec. v Triton Structural Concrete, Inc., 2018 NY Slip Op 02562 (1st Dept. 2018)

“Although the affidavit of merit provided by defendants’ executive lacked any detail concerning their potential defenses to plaintiffs’ claims for payment for work performed on three subcontracts, an affidavit of merit is “not essential to the relief sought” by defendants before entry of a default order or judgment (DeMarco v Wyndham Intl., 299 AD2d 209, 209 [1st Dept 2002]; see Nason v Fisher, 309 AD2d 526 [1st Dept 2003])”

The Court of Appeals should resolve this conflict.  The other Departments hold that a meritorious defense is needed.  The Second Circuit on construing Rule 55 after a clerks marking of default holds the same.  Also, the way around this is to enter an ex-parte judgment on liability, which is something that downstate Courts frown upon unless it is a sum certain matter.

Portion of a deposition is enough April 11, 2018

Pankratov v 2935 OP, LLC, 2018 NY Slip Op 02479 (2d Dept. 2018)

“In support of its motion, the defendant submitted excerpts of the plaintiff’s deposition transcript which demonstrated, prima facie, that the plaintiff was unable to identify the cause of his fall without resorting to speculation (see Razza v LP Petroleum Corp., 153 AD3d 740, 741; Amster v Kromer, 150 AD3d 804, 804; Hoovis v Grand City 99 Cents Store, Inc., 146 AD3d 866, 866; Hahn v Go Go Bus Tours, Inc., 144 AD3d 748, 749; Giordano v Giordano, 140 AD3d 699, 700). In opposition, however, the plaintiff raised a triable issue of fact in this regard by submitting a complete copy of his deposition transcript. When the entirety of that transcript is reviewed, it is clear that the plaintiff identified transparent ice as the cause of his fall. Contrary to the defendant’s contention, such testimony correlates to the plaintiff’s averments regarding the cause of his fall which were set forth in his subsequent affidavit.”

I always thought (and now incorrectly) that a party seeking to use EBT testimony in support  (or in opposition) needed to include the entire deposition transcript.  It was always dicey to pick the pieces of the EBT you want to insert in the motion.  The court, however, sees this as being alright.

Standing April 9, 2018

McCormack v Maloney, 2018 NY Slip Op 02385 (3d Dept. 2018)

This is a commercial paper case, but I blog about standing because it is an issue we deal with at various times.  Here are relevemt snippets from an upstate case involving holder of notes that are not indorsed in blank.


“Defendant argues, and we agree, that the complaint should have been dismissed for lack of standing. Because defendant raised the issue of standing as an affirmative defense in his answer, plaintiff had to prove his standing to maintain this foreclosure action in order to be entitled to relief….”

“At trial, plaintiff testified that he purchased the note and mortgage from Trustees Capital in September 2006, and a written assignment effectuating the transfer of both such instruments to plaintiff was admitted into evidence. The testimonial and documentary evidence adduced at trial further established, however, that plaintiff subsequently assigned both the note and mortgage to his then-bankruptcy attorney in March 2008 as partial payment for legal services, and there is not a scintilla of proof in the record that the note was reassigned to plaintiff prior to the commencement of this foreclosure action in June 2010. Nor did the trial evidence establish that plaintiff was the holder of the original note at the time that he commenced this action. “Holder status is established where the plaintiff possesses a note that, on its face or by allonge, contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff” (Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375, 1376 [2015] [citations omitted]; see UCC 1-201 [b] [21]; 3-202, 3-204; Hartford Acc. & Indem. Co. v American Express Co., 74 NY2d 153, 159 [1989]; U.S. Bank N.A. v Brody, 156 AD3d 839, 840 [2017]). While there was testimony that plaintiff possessed the original note at the time of trial in 2015, there was no proof that he was in possession of the original note when he commenced this foreclosure action five years earlier. Even if he was, the note — which was payable to Trustees Capital — was neither indorsed in blank nor specially indorsed to him. Consequently, plaintiff’s physical possession of the note could not render him the lawful holder thereof for purposes of enforcing it .”

Now, another interesting question here is whether the 6 month period to recommence the action would run upon dismissal since the dismissal is not on the merits?

Gap in treatment and inconsistent findings April 9, 2018

Alverio v Martinez, 2018 NY Slip Op 02417 (1st Dept. 2018)

In addition, defendants submitted medical reports of plaintiff’s treating physician, who found normal range of motion in plaintiff’s lumbar spine and left shoulder the day after the accident (see Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011]). They also submitted plaintiff’s deposition testimony, in which he acknowledged that he had a preexisting degenerative lower back condition for which he received Social Security disability benefits, and that he stopped all treatment related to the claimed injuries when he was “cut off” five months after the accident (see Pommells v Perez, 4 NY3d 566, 576 [2005]).

In opposition, plaintiff failed to raise an issue of fact. Plaintiff’s physician averred that she found significant limitations in range of motion of plaintiff’s cervical spine, lumbar spine and left shoulder both shortly after the accident in 2010, and, most recently, in December 2013. However, she failed to explain the conflicting findings of full range of motion in her own reports prepared the day after the accident and in the next two months (see Colon v Torres, 106 AD3d 458 [1st Dept 2013]; Thomas v City of New York, 99 AD3d 580, 581 [1st Dept 2012], lv denied 22 NY3d 857 [2013]). Moreover, plaintiff failed to adequately explain his cessation of treatment for these claimed injuries five months after the accident, notwithstanding that he had medical coverage through Medicare, and continued to see his primary care doctor regularly for other conditions (see Green, 140 AD3d at 547; Merrick v Lopez-Garcia, 100 AD3d 456, 456-457 [1st Dept 2012]). In light of the extended gap in treatment, plaintiff’s physician’s opinion that the more severe range-of-motion limitations she found in December 2013 were causally related to [*2]the accident is speculative (see Pommells, 4 NY3d at 574; Merrick v Lopez-Garcia, 100 AD3d at 457).