Discovery.

Defendants are entitled to copies of their emails, correspondence, and texts in plaintiff's possession because they are discoverable party statements, pursuant to CPLR 3101[e].  However, plaintiff is not obligated to produce the medical records of his treatment with defendants, as they made no showing that those records, created and maintained by them, were unavailable to them. As to defendants' demand for the names and addresses of any and all individuals who were witnesses to the medical conditions alleged in the complaint, this request is palpably improper as overbroad and burdensome, particularly where no depositions have been held. Defendants are not entitled to authorizations releasing plaintiff's employment records, as plaintiff had withdrawn all of his claims for lost earnings, and defendants did not make a sufficient showing as to how those records were material or necessary to their defense, pursuant to CPLR 3101[a]. Defendants may renew their request for employment records if plaintiff's deposition testimony makes them relevant.

Fusco v. Mace Ave. Med., P.C., NY Slip Op 05922 (1st Dep't October 20, 2022)

Here is the decision.

Appellate practice.

The Appellate Division declines to consider whether the trial court properly determined that plaintiffs could pursue and adequately alleged alter ego or veil piercing as separate theories, as defendants did not challenge those rulings in their opening appellate brief.

Alesco Preferred Funding VIII, Ltd v. ACP Re, Ltd, NY Slip Op 05920 (1st Dep't October 20, 2022)

Here is the decision.

The evidentiary value of business records.

While the foundation for the admission of a business record may be provided by the testimony of the record's custodian, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.

Bank of N.Y. Mellon Trust Co., N.A. v. Andersen, NY Slip Op 05827 (2d Dep't October 19, 2022)

Here is the decision.

A motion to vacate a default.

A default judgment was entered against defendants after they failed to comply with court orders directing them to answer the third and fourth amended verified complaints, or risk being held in default. Defendants did not oppose plaintiff's motion for a default judgment against them, although properly served with notice of the motion. The court denied defendants' motions to vacate the default judgment pursuant to CPLR 5015(a)(1), which were made outside the one-year time limitation, and without a valid excuse.  The court rejected defendants' alternative argument that they are entitled to vacatur under CPLR 5015(a)(4), based on lack of jurisdiction. Defendants did not move on that basis, but improperly raised the issue for the first time in their reply papers.

TGT, LLC v. Advance Entertainment, LLC, NY Slip Op 05818 (1st Dep't October 18, 2022)

Here is the decision.

Privileged attorney work product.

The absolute privilege under CPLR 3101(c) is limited to materials prepared by an attorney, while acting as an attorney, which contain the attorney's legal analysis, conclusions, theory, or strategy. Materials or documents that could have been prepared by a layperson do not fall within the attorney work product exception.

Bent-Anderson v. Singh, NY Slip Op 05676 (2d Dep't October 12, 2022)

Here is the decision.

Statutory amendments.

Where the alleged misconduct took place before the effective date of the amendments, the pre-amendment version of the statutes applies. 

Matter of Fodor v. Esposito, NY Slip Op 05787 (1st Dep't October 18, 2022)

Here is the decision.

A motion for summary judgment in an action to foreclose a mortgage.

The plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default. The plaintiff may establish a payment default by an admission made in response to a notice to admit, pursuant to CPLR 3212[b], 3123, by an affidavit from a person having personal knowledge of the facts, pursuant to CPLR 3212[b], or by other evidence in admissible form.

Here, the plaintiff failed to establish, prima facie, the defendants' default in payment by submitting the affidavit of an employee of its loan servicer. The affiant averred that, based upon his review of unspecified business records, the defendants defaulted in making monthly payments in October 2008. However, the affiant did not aver that he had personal knowledge of the defendants' alleged default in payment. He also failed to identify which records he relied on to assert a default in payment, and the notice of default annexed to the affidavit was insufficient to establish the alleged default in payment. 

Bank of N.Y. Mellon v. Mannino, NY Slip Op 05675 (2d Dep't October 12, 2022)

Here is the decision.

A discrimination claim under the New York City Human Rights Law.

The claim is dismissed, as the alleged conduct amounts to no more than petty slights and trivial inconveniences, which are not actionable. The alleged stray remark that plaintiff was "old enough to retire" does not, without more, give rise to an inference of ageist bias, Plaintiff's bare allegations that younger officers who had committed misconduct did not receive unfavorable assignments are too general to support an inference of age discrimination.

Lent v. City of New York, NY Slip Op 05755 (1st Dep't October 13, 2022)

Here is the decision.

Appellate practice.

Where a motion to renew and reargue is not based on new facts that were not known to the movant at the time of the original motion, the appeal is deemed to be from a motion to reargue, the denial of which is not appealable.

Matter of Ofek Rachel Ltd. v. Suky, NY Slip Op 05759 (1st Dep't October 13, 2022)

Here is the decision.

Dismissal for failure to comply with court-ordered discovery.

The drastic remedy of dismissing a complaint for the plaintiff's failure to comply with court-ordered discovery is warranted where the conduct is shown to be willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse, or (2) the failure to comply with court-ordered discovery over an extended period of time. Here, the willful and contumacious nature of the plaintiffs' conduct may properly be inferred from their repeated failures, without a reasonable excuse, to comply with the defendants' discovery demands, the court's order, and prior so-ordered stipulations. 

Ashfaq v. Ice Cream Depot Corp., NY Slip Op 05674 (2d Dep't October 12, 2022)

Here is the decision.

Summary judgment before discovery.

The Appellate Division rejects plaintiff's argument that defendants' motion for summary judgment before discovery is premature. The record shows that the facts concerning plaintiff's dealings with defendants are within plaintiff's knowledge. Therefore, plaintiff does not establish that "facts essential to justify opposition may exist but cannot then be stated," as required for a motion brought under CPLR 3212[f].

 Alpine Custom Floors, Inc. v. Yurcisin, NY Slip Op 05655 (1st Dep't October 11, 2022)

Here is the decision.