Category Archives: Civil Procedure

*Show Me the Money! Or at a Minimum, Show it to the Sheriff to Stop the Auction.

I always love to cite to old cases. The Court of Appeals in Rondack Constr. Servs., Inc. v Kaatsbaan Intl. Dance Ctr., Inc. got to do just that with a case from 1875, when it unanimously held on December 15, 2009 that “a judgment debtor’s tender to the sheriff before its property is auctioned at a judicial sale automatically discharges the execution lien, terminating the sheriff’s authority to sell the property.” In doing so, the Court reaffirmed Tiffany v St. John 65 NY 314 (1875)

In Rondack the plaintiff, prior to an auction of the plaintiff’s property to satisfy a judgment, offered the sheriff “an amount sufficient to satisfy the judgment, together with interest, poundage and other related fees.” but it was declined by the Sheriff and the auction proceeded.

“In Tiffany, the sheriff levied on a judgment debtor’s boat pursuant to an execution and proceeded to sell it at a public auction. Before bidding began, the judgment debtor tendered to the sheriff an amount sufficient to satisfy the judgment and all associated costs. The sheriff refused the tender and sold the boat to the highest bidder. Analogizing to the common-law equity of redemption in the mortgage foreclosure context, this Court held more than a century ago that, under these circumstances, the tender was the equivalent of payment and had the “instantaneous effect” of discharging the lien created by the execution (65 NY at 318). Consequently, the sheriff lost the authority to sell the property, resulting in an improper conveyance.

A property owner who desires to tender the appropriate amount before the actual sale is free to do so without the need to move under CPLR 5240. Stated differently, property owners possess a common-law right under Tiffany to redeem their property before sale without judicial intervention.

Here, as in Tiffany, Kaatsbaan timely tendered an amount sufficient to satisfy the judgment and all fees and expenses. Kaatsbaan’s tender extinguished the lien and foreclosed the sale of the property. The Appellate Division therefore properly granted Kaatsbaan’s motion to set aside the sale and compel the Sheriff to accept its check in full satisfaction of the judgment.”

*Local Rules of the United States District Courts for the Southern and Eastern Districts of New York

Now that they are in effect, I have added the Eastern District version of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York to my link list.

Late Expert Disclosure Affidavits Now Permitted To Be Used Pursuant to CPLR R3212 on Motions for Summary Judgment

***Now permitted to be used pursuant to CPLR R3212.***

Recently I have been discussing with some colleagues the position of the Second Department on first time expert disclosure in association with motions for summary judgment after the filing of a note of issue and certificate of readiness, or as I call them “late expert disclosure affidavits.”

As an aside, the First Department in Mauro v Rosedale Enters. 60 AD3d 401 (1st Dept 2009) had an opportunity to rule on this issue but choice not to, because the expert disclosure was inadequate. There they said:

“We need not determine whether the affidavit of plaintiffs’ expert engineer should not have been considered in light of plaintiffs’ failure to identify this expert during pretrial disclosure, despite repeated court orders to do so. The expert affidavit, even if considered, fails to raise a triable issue of fact, instead citing various broad or inapt engineering rules, regulations and standards.” (citations omitted.)

Getting back to the Second Department; Last month the Second Department in Gerardi v Verizon N.Y., Inc. 2009 NY Slip Op 07798, ( October 27, 2009) said in reversing the denial of defendant’s motion for summary judgment that:

“The plaintiff’s expert affidavit should not have been considered in determining the motion since the expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery (see Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863), and the plaintiff offered no valid excuse for his delay in identifying his expert.“

However the Court then went on to hold that “In any event, even if the plaintiff’s expert affidavit could have properly been considered, the result would not have been different (citation omitted).”

In fact in the half dozen or more cases in the Second Department that I found where late expert disclosure affidavits were rejected on a motion for summary judgment, only one case did not contain the holding that the expert’s affidavit was inadequate.

However when a Second Department trial court considered a late expert disclosure affidavit which made a difference, this is what the Second Department had to say this past September.

“Here, the Supreme Court did not improvidently exercise its discretion in considering the expert materials submitted by the plaintiffs in opposition to the defendants’ summary judgment motion since there was no evidence that the failure to disclose was intentional or willful, and there was no showing of prejudice to the defendants. Moreover, the defendants had sufficient time to respond to the plaintiffs’ submissions.” (citation omitted) Browne v Smith 65 AD3d 996 (2nd Dept 2009)

The Second Department in Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d at 710 explained the reasoning for the approval of the use of a late expert affidavit more fully when they said:

“The plaintiffs contend that the Supreme Court erred in considering the expert affidavits submitted by the respondents in support of their respective motions because they had not complied with the plaintiffs’ demand for expert witness information pursuant to CPLR 3101 (d) (1) (i). “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 proffering 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” Contrary to the plaintiffs’ contention, the Supreme Court providently exercised its discretion in considering the affidavits of the respondents’ experts as there was no evidence that the respondents’ failure to disclose was intentional or willful and there was no showing of prejudice to the plaintiffs (citations omitted).”

It is noted that CPLR 3101(d) states that “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.” Thus while it seems clear that the expert proponent must show “good cause” for a delay prior to trial for disclosure of its expert, it not so clear when the late expert disclosure affidavit is produced upon a motion for summary judgment.

It is noted that the Fourth Department in Kozlowski V. Alcan Aluminum Corp., 209 A.D.2d 930, 931 (N.Y. App. Div. 4th Dep’t 1994) takes a slightly different route when they rejected “plaintiffs’ contention that the affidavit submitted by defendant’s expert should not be considered because defendant failed to disclose the expert’s identity in a reasonable time pursuant to CPLR 3101 (d) (1) (i). Plaintiffs’ remedy for failure to comply with that section is to move before the IAS court for “whatever order may be just” (CPLR 3101 [d] [1] [i]).”

Thus while Gerardi and Browne and Hernandez-Vega seem to differ on the burden of proof as to whether a failure to disclose was intentional or willful, I believe that it will all come down to a showing of prejudice in the Second Department, thus placing the burden on the party opposing the late expert disclosure affidavit. And I see nothing to suggest in the cases from the Second Department, that a failure to identify an expert prior to the filing of a note of issue and certificate of readiness, would preclude the use of an expert at trial even if disclosed early enough before trial, as has been suggested by a colleague.

But the best course is to make expert disclosure prior to the filing of a note of issue and certificate of readiness, so as to avoid a distracting fight on the timing of the disclosure on a motion for summary judgment or at trial.

***Now permitted to be used pursuant to CPLR R3212.***

*New York Official Reports Style Manual with 2009 Supplement

I have added to my Links The New York Official Reports Style Manual with 2009 Supplement (effective November 2009,) in both PDF and HTML versions.

*Signing Federal papers. If you missed the changes, here they are.

I haven’t been in Federal Court lately, so I have had no occasion to violate two changes in the rules that went into play shortly after I went out on my own. But for those like myself who missed it, there is no need on Federal papers to use your initials and four digit identifier (see change in local rule), but you do now have to add your e-mail address (see change in F.R.C.P.) Remember, F.R.C.P. trumps Local Rules. Current rules set forth below.

F.R.C.P. Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name–or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

Local Civil Rule 11.1. Form of Pleadings, Motions, and Other Papers
(a) Every pleading, written motion, and other paper must (1) be plainly written, typed, printed, or copied without erasures or interlineations which materially deface it, (2) bear the docket number and the initials of the judge and any magistrate judge before whom the action or proceeding is pending, and (3) have the name of each person signing it clearly printed or typed directly below the signature.

*Some judges do have a sense of humor, and a knowledge of the law regarding amendments to pleadings

New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.,** 2009 NY Slip Op 52217(U) October 23, 2009 Appellate Term, Second Department

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I strenuously disagree with the majority gratuitously raising a nonexistent issue, namely that a Mallela defense (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) may be disallowed if “prejudice or surprise would result therefrom.” This impression was created by the majority in choosing here to excise an important requirement with regard to the law of amending an answer. The actual statement by the Court of Appeals in McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp. (59 NY2d 755, 757 [1983] [emphasis added, citations and internal quotations marks omitted]) is that, “Leave to amend the pleadings shall be freely given absent prejudice or surprise resulting directly from the delay.”

To me, it is extremely unlikely that an individual who creates a fraudulent entity for the purpose of defrauding an insurance company would forget that he/she did so and be prejudiced or surprised when it was discovered. Such would be akin to a person running a “Ponzi” scheme deciding to invest in his own firm because it was obtaining such good results

**Case brought to my attention by The Rogak Report

*Time computation changes to Local Rules for the EDNY and SDNY

If you are not signed up for ECF in the EDNY or the SDNY, you would not have received the enclosed useful chart that sets forth the new time computation changes set forth in the Local Rules for the Eastern and Southern Districts of New York, which were made due to the changes in the F.R.C.P., all effective December 1, 2009. Also included is the Report of the joint committee on local rules concerning amendments to the local rules of the SDNY and EDNY required as a result of the time computation amendments to the federal rules

The major change is the discontinuance of not counting weekends and Federal holidays in certain instances. Now they are all counted, but the times to act have been extended in those instances when you would not have counted those days. Saturdays, Sundays, and legal holidays are no longer excluded in computing periods of time. If the last day of the period is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. Also most time periods have been adjusted to be week orientated, i.e. multiples of 7.

Chart – Time Computation – Local Rules NYED and NYSD – December 1 2009

The complete local rules on the SDNY site (Includes Amendments through December 1, 2009)

The complete local rules on the EDNY site (Includes Amendments through December 1, 2009)