cplr update - New York County Lawyers' Association [PDF]

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for November 14, 2013

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N S T I T U T E

CPLR U PDATE

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FACULTY: David Paul Horowitz, Ressler & Ressler

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; 1Ethics; 3 Professional Practice. 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, 1 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 CPLR Update November 14, 2013; 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. i.

You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii.

You will receive your MCLE certificate as you exit the room at 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.

iv.

Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

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

CPLR Update November 14, 2013; 5:30 PM to 9:00 PM

AGENDA Faculty:

David Paul Horowitz, Ressler & Ressler

5:00 PM – 5:30 PM

Registration

5:30 PM – 5:40 PM

Introductions and Announcements

5:40 PM – 9:00 PM

Discussion

New York County Lawyers Association

CPLR Update 2013 November 14, 2013 by David Paul Horowitz Ressler & Ressler 48 Wall Street New York, N.Y. 10005 914-424-1113 [email protected]

© 2013 David Paul Horowitz All Rights Reserved

“Rules have not always been drafted with practicality in mind.”1

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Simon v. Usher, 17 N.Y.3d 625, 958 N.E.2d 540, 934 N.Y.S.2d 362 (2011), Judge Pigott dissenting.

Table of Contents I.

Uniform Notice of Claim & Commencement

II.

Statutes of Limitation & Jurisdiction

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III.

Pleadings & Motion Practice

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IV. Ethical Issues In Electronic Disclosure V.

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83

Other Disclosure Developments

120

VI. Expert Exchanges & Testimony

153

VII. Summary Judgment & Trial Issues

158

VIII. Ethics Developments

173

IX. Miscellaneous

210

New York County Lawyers Association 2013 C.P.L.R. Update

 

C.P.L.R. Update 20131 I. Uniform Notice of Claim & Commencement a. Uniform Notice of Claim Signed December 17, 2012, effective June 17, 2013 BILL NUMBER: S7641 TITLE OF BILL: An act to amend the general municipal law, the environmental conservation law, the public authorities law, the education law, the mental hygiene law, the private housing finance law, the facilities development corporation act, the administrative code of the city of New York, chapter 154 of the laws of 1921 relating to the port authority of New York and New Jersey, and the civil practice law and rules, in relation to establishing a uniform process and requirement for the filing of notices of claim prior to the commencement of a cause of action against any state or municipal entity, public authority or public benefit corporation PURPOSE OF BILL: The purpose of this bill is to provide plaintiffs with a uniform, fair and statutorily consistent procedure for serving a notice of claim of intention to commence a proceeding in the courts of this state for damages suffered as an aggrieved party, and similarly provide for a statutorily consistent statute of limitations applicable to such actions. SUMMARY OF PROVISIONS OF BILL: Section 1 of this legislation provides that this act shall be known as the "Uniform Notice of Claim Act." Section 2 amends the civil practice law and rules to state that all notices of claim served on any entity entitled to such a notice as a condition precedent to the commencement of an action, whether the relevant statute is expressly amended by the bill or not, are subject to the requirements of general municipal law 50-e. This section also provides that the statute of limitations applicable to actions, except wrongful death actions, against such entities shall be longer of one year and ninety days or the time period specified in any other provision of law. Section 3 amends the civil practice law and rules to state that any fee imposed by this act shall be a taxable disbursement. Section 4 amends the general municipal law to allow notices of claim against any public 1

I was fortunate that John Higgitt, Esq., generously shared with me a number of his outlines and bar materials for use in this program. Needless to say, any mistakes contained herein are my own.

© 2013 David Paul Horowitz, All Rights Reserved

 

New York County Lawyers Association 2013 C.P.L.R. Update

 

corporation to be served on the Secretary of State at a location designated by the Secretary for that purpose, and requires the Secretary of State to forward a copy to the entity named in the notice of claim. Service of the notice of claim shall be complete when served on the Secretary of State. Section 5 amends the general municipal law to allow an error in naming a public corporation in a notice of claim, if made in good faith, to be the basis for a discretionary extension of the time to serve a correct notice of claim, unless the proper public corporation suffered substantial prejudice. Section 6 amends the general municipal law to require entities entitled to receive a notice of claim to file a certificate with the Secretary of State that identifies the name and address to which the Secretary of State must transmit notices of claims. Failure of an entity to file such a certificate will not invalidate any notice of claim served on the Secretary of State. This section also provides for a $250 filing fee for service of a notice of claim on the Secretary of State, with the half of that fee to be retained by the Secretary of State and the other half provided to the entity or entities named in the notice of claim. 2013 Legislation Relates to the filing of notices of claim prior to the commencement of a cause of action against any state or municipal entity, public authority or public benefit corporation; amends chapter 500 of the laws of 2012, amending the civil practice law and rules, the general municipal law, the environmental conservation law, the public authorities law, the education law, the mental hygiene law, the private housing finance law, the facilities development corporation act, the administrative code of the city of New York, and chapter 154 of the laws of 1921 relating to the port authority of New York and New Jersey, relating to establishing a uniform process and requirement for the filing of notices of claim prior to the commencement of a cause of action against any state or municipal entity, public authority or public benefit corporation, in relation to the effectiveness thereof. AN ACT to amend the civil practice law and rules, the general municipal law and the New York city health and hospitals corporation act, in relation to the filing of notices of claim prior to the commencement of a cause of action against any state or municipal entity, public authority or public benefit corporation; and to amend chapter 500 of the laws of 2012, amending the civil practice law and rules and other laws, relating to establishing a uniform process and requirement for the filing of notices of claim prior to the commencement of a cause of action against any state or municipal entity, public authority or public benefit corporation, in relation to the effectiveness thereof THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

© 2013 David Paul Horowitz, All Rights Reserved

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New York County Lawyers Association 2013 C.P.L.R. Update

 

Section 1. Section 217-a of the civil practice law and rules, as added by chapter 500 of the laws of 2012, is amended to read as follows: S 217-a. Actions to be commenced within one year and ninety days. Notwithstanding any other provision of law to the contrary, and irrespective of whether the relevant statute is expressly amended by[sections three through seventy-nine of] the uniform notice of claim act, every action for damages or injuries to real or personal property, or for the destruction thereof, or for personal injuries or wrongful death, against any political subdivision of the state, or any instrumenality or agency of the state or a political subdivision, any public authority or any public benefit corporation that is entitled to receive a notice of claim as a condition precedent to commencement of an action, shall not be commenced unless a notice of claim shall have been served on such governmental entity within the time limit established by SECTION FIFTY-E OF THE GENERAL MUNICIPAL LAW, and SUCH ACTION MUST BE COMMENCED in compliance with all the requirements of section fifty-e AND SUBDIVISION ONE OF SECTION FIFTY-I of the general municipal law. Except in an action for wrongful death against such an entity, an action for damages or for injuries to real or personal property, or for the destruction thereof, or for personal injuries, alleged to have been sustained, shall not be commenced more than one year and ninety days after the cause of action therefor shall have accrued or within the time period otherwise prescribed by any special provision of law, whichever is longer. Nothing herein is intended to amend the court of claims act or any provision thereof. S 2. Paragraph (f) of subdivision 3 of section 50-e of the general municipal law, as added by chapter 500 of the laws of 2012, is amended to read as follows: (f) Service of a notice of claim on the secretary of state as agent of any public corporation, AS DEFINED IN SUBDIVISION ONE OF SECTION SIXTY SIX OF THE GENERAL CONSTRUCTION LAW, whatsoever created or existing by virtue of the laws of the state of New York upon whom service of a notice of claim is required as a condition precedent to being sued, may be made by personally delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service, at [any] THE office of the department of state in the city of Albany [or at one of his or her regularly established offices], duplicate copies of such notice of claim together with the statutory fee, which fee shall be a taxable disbursement BUT ONLY IN THE AMOUNT EQUAL TO THE PORTION OF THE FEE COLLECTED BY THE PUBLIC CORPORATION IN ACCORDANCE WITH SUBDIVISION FOUR OF THIS SECTION. Service on such public corporation shall be complete when the secretary of state is so served. [The secretary of state shall promptly] WITHIN TEN DAYS AFTER RECEIVING A NOTICE OF CLAIM, THE SECRETARY OF STATE SHALL EITHER: (1) send one of such copies by certified mail, return receipt requested, to such public corporation, at the post office address[,] on file in the department of state, specified for the purpose; OR (2) ELECTRONICALLY TRANSMIT A COPY TO SUCH PUBLIC CORPORATION AT THE ELECTRONIC ADDRESS ON FILE © 2013 David Paul Horowitz, All Rights Reserved

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New York County Lawyers Association 2013 C.P.L.R. Update

 

WITH THE DEPARTMENT OF STATE SPECIFIED FOR THAT PURPOSE; OR (3) TRANSMIT A COPY TO SUCH PUBLIC CORPORATION BY ANY OTHER SUCH MEANS OR PROCEDURE ESTABLISHED BY THE SECRETARY OF STATE, PROVIDED THAT SUCH OTHER MEANS OR PROCEDURE OF TRANSMITTAL MUST BE VERIFIABLE. S 3. Section 53 of the general municipal law, as added by chapter 500 of the laws of 2012, is amended to read as follows: S 53. Alternative service of notice of claim upon the secretary of state. 1. In lieu of serving a notice of claim upon a public corporation as provided for in section fifty-e of this article, a notice of claim setting forth the same information as required by such section may be served upon the secretary of state in the same manner as if served with the public corporation. All the requirements relating to the form, content, time limitations, exceptions, extensions and any other procedural requirements imposed in such section with respect to a notice of claim served upon a public corporation shall correspondingly apply to a notice of claim served upon the secretary of state as permitted by this section. For purposes of this article, the secretary of state shall be deemed to be the agent for all public corporations upon whom a notice of claim may be served prior to commencement of any action or proceeding subject to the requirements of this article. 2. [The secretary of state shall designate an office within the department of state whereat persons are entitled by law to timely serve a notice of claim upon the secretary of state as the agent for a public corporation as a condition precedent to commencement of an action or proceeding.] All public corporations entitled to have served upon them a notice of claim as a condition precedent to commencement of an action or proceeding shall, no later than thirty days after the date upon which this section shall take effect, file a certificate with the secretary of state designating the secretary as the agent for service of a notice of claim and shall in such statement provide the secretary with the name, POST OFFICE ADDRESS and ELECTRONIC MAIL address, IF AVAILABLE, of an officer, person, or designee, nominee or other agent-in-fact for the transmittal of notices of claim served upon the secretary as the public corporation's agent. Any designated [post-office] POST OFFICE address OR ELECTRONIC MAIL ADDRESS to which the secretary of state shall [mail] TRANSMIT a copy of the notice of claim served upon him or her as agent shall continue to be the address to which such notices shall be [mailed] TRANSMITTED until the public corporation sends a notice to the secretary informing him or her of a new POST OFFICE address OR ELECTRONIC MAIL ADDRESS to which such notices shall be [mailed] TRANSMITTED. The initial filing with the secretary of state shall also contain the applicable time limit for filing a notice of claim upon that public corporation, or if later changed by statute, a new filing shall be made detailing the [altered] NEW time limit. Any public corporation [who] THAT does not have a current and timely statutory designation filed with the secretary of state shall not be entitled to the portion of the fee to which it would otherwise be entitled pursuant to subdivision four of this section. Failure of the public corporation © 2013 David Paul Horowitz, All Rights Reserved

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New York County Lawyers Association 2013 C.P.L.R. Update

 

to so file with the secretary of state will not invalidate any service of a notice of claim upon the public corporation which has been received by the secretary of state. 3. The secretary of state is hereby empowered to accept properly transmitted notices of claims on behalf of a public corporation, with the same effect as if served directly upon a public corporation. The secretary of state shall accept such service upon the following terms and conditions: (a) the secretary of state shall set and notify the public, on his or her website, [as to reasonable] OF times, places and manner of service upon him or her of notices of claims NECESSARY TO COMPLY WITH THE PROVISIONS OF THIS SECTION; (b) upon receipt of a notice of claim, the secretary of state shall issue a receipt or other document acknowledging his or her receipt of such notice, and such receipt shall contain the date and time of receipt of the notice, an identifying number or name particular to the notice received, and the logo or seal of the department of state embossed upon it. Such receipt shall be prima facie evidence of service upon the secretary of state for all purposes; (c) [within ten days after receiving the notice of claim, the secretary of state shall transmit an original or a copy of the notice of claim to the public corporation named in the notice; (d)] nothing in this section shall be deemed to alter, waive or other wise abrogate any defense available to a public corporation as to the nature, sufficiency, or appropriateness of the notice of claim itself, or to any challenges to the timeliness of the service of a notice of claim. Timely service upon the secretary of state shall be deemed timely service upon the public corporation for purposes of instituting an action or proceeding or other requirement imposed by law. 4. The secretary of state may impose a fee upon any person who serves a notice of claim with the department. Such fee shall not exceed two hundred fifty dollars for each such notice filed. One-half of the fee imposed shall be retained by the secretary of state as payment for its services provided in accordance with this section. The remaining one half of such fee shall be forwarded to the public corporation named in the notice of claim provided, however, if more than one such public corporation is named, each named public corporation shall be entitled to an equal percentage of the one-half amount. 5. The secretary of state shall within sixty days after the effective date of this section post on the departmental website a list of any public corporation, including any public authority, public benefit corporation or any other entity entitled to receive a notice of claim as a condition precedent to commencement of an action or proceeding, and that has filed, pursuant to this section, a certificate with the secretary of state designating the secretary as the agent for service of a notice of claim. The list should identify the entity, the POST OFFICE address AND ELECTRONIC MAIL ADDRESS, IF AVAILABLE, of the public corporation to which the notice of claim shall be © 2013 David Paul Horowitz, All Rights Reserved

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New York County Lawyers Association 2013 C.P.L.R. Update

 

forwarded by the secretary of state, and any statutory provisions uniquely pertaining to such public corporation and the commencement of an action or proceeding against it. 6. THE SECRETARY OF STATE IS AUTHORIZED TO PROMULGATE ANY RULES OR REGULATIONS NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS SECTION. S 4. Subdivision 2 of section 50-h of the general municipal law, as amended by chapter 254 of the laws of 1990, is amended to read as follows: 2. The demand for examination as provided in subdivision one of this section shall be made by the chief executive officer or, where there is no such officer, by the chairman of the governing body of the city, county, town, village, fire district or school district or by such officer, agent or employee as may be designated by him for that purpose. The demand shall be in writing and shall be served personally or by registered or certified mail upon the claimant unless the claimant is represented by an attorney, when it shall be served personally or by mail upon his attorney. The demand shall give reasonable notice of the examination. It shall state the person before whom the examination is to be held, the time, place and subject matter thereof and, if a physical examination is to be required, it shall so state. If the place of examination is located outside the municipality against which the claim is made, the claimant may demand, within ten days of such service, that the examination be held at a location within such municipality. Such location shall be determined by the municipality. If a physical examination is to be required and there is no appropriate place for such an examination within the municipality, such examination shall be given at a location as close to such municipality as practicable. No demand for examination shall be effective against the claimant for any purpose unless it shall be served as provided in this subdivision within ninety days from the date of filing of the notice of claim, OR IF SERVICE OF THE NOTICE OF CLAIM IS MADE BY SERVICE UPON THE SECRETARY OF STATE PURSUANT TO SECTION FIFTY-THREE OF THI ARTICLE, WITHIN ONE HUNDRED DAYS FROM THE DATE OF SUCH SERVICE. S 5. Subdivision 1 of section 50-i of the general municipal law, as amended by chapter 738 of the laws of 1981, is amended to read as follows: 1. No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district or of any officer, agent or employee thereof, including volunteer firemen of any such city, county, town, village, fire district or school district or any volunteer fireman whose services have been accepted pursuant to the provisions of section two hundred nine-i of this chapter, unless, (a) a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in compliance with © 2013 David Paul Horowitz, All Rights Reserved

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section fifty-e of this [chapter] ARTICLE, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice, OR IF SERVICE OF THE NOTICE OF CLAIM IS MADE BY SERVICE UPON THE SECRETARY OF STATE PURSUANT TO SECTION FIFTY-THREE OF THIS ARTICLE, THAT AT LEAST FORTY DAYS HAVE ELAPSED SINCE THE SERVICE OF SUCH NOTICE, and that adjustment or payment thereof has been neglected or refused, and (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced within two years after the happening of the death. S 6. Subdivision 1 of section 20 of section 1 of chapter 1016 of the laws of 1969 constituting the New York city health and hospitals corporation act, as amended by chapter 877 of the laws of 1973, is amended to read as follows: 1. In every action against the corporation for damages for injuries to real or personal property, or for the destruction thereof, or for personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a director or officer of the corporation and that the corporation has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment, OR IF THE DEMAND, CLAIM OR CLAIMS UPON WHICH SUCH ACTION IS FOUNDED WAS PRESENTED TO A DIRECTOR OR OFFICER OF THE CORPORATION BY SERVICE UPON THE SECRETARY OF STATE PURSUANT TO SECTION FIFTYTHREE OF THE GENERAL MUNICIPAL LAW, THAT AT LEAST FORTY DAYS HAVE ELAPSED SINCE SUCH SERVICE WAS MADE, AND THAT TH CORPORATION HAS NEGLECTED OR REFUSED TO MAKE AN ADJUSTMENT OR PAYMENT THEREOF FOR FORTY DAYS AFTER SUCH PRESENTMENT. Section 79 of chapter 500 of the laws of 2012 amending the civil practice law and rules and other laws, relating to establishing a uniform process and requirement for the filing of notices of claim prior to the commencement of a cause of action against any state or municipal entity, public authority or public benefit corporation, is amended to read as follows: S 79. This act shall take effect on the one hundred eightieth day after it shall have become a law and shall apply to all actions and proceedings accruing on or after such date; provided, however, THAT SECTION FOUR OF THIS ACT SHALL TAKE EFFECT TWO HUNDRED TEN DAYS AFTER THIS ACT SHALL HAVE BECOME A LAW; AND PROVIDED, FURTHER, that section seventy-eight of this act shall take effect upon the enactment into law by the state of New Jersey of legislation having an identical effect as section seventy-eight of this act, but if the state of New Jersey shall have enacted such legislation into law prior to the first day of January next succeeding the date upon which this act shall have become a law, section seventy-eight of this act shall take effect on the one hundred eightieth day from the date upon which it shall have become a law; provided further, [however,] that the state of New © 2013 David Paul Horowitz, All Rights Reserved

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New York County Lawyers Association 2013 C.P.L.R. Update

 

Jersey shall notify the legislative bill drafting commission upon the occurrence of the enactment of the provisions provided for in this act in order that the commission may maintain an accurate and timely effective data base of the official text of the laws of the state of New York in furtherance of effecting the provisions of section 44 of the legislative law and section 70-b of the public officers law; AND PROVIDED FURTHER THAT SECTION NINE OF THIS ACT SHALL TAKE EFFECT UPON THE CONCURRENCE BY MEMBERS OF THE DELAWARE RIVER BASIN WATER COMMISSION. S 8. This act shall take effect on the same date and in the same manner as chapter 500 of the laws of 2012 takes effect.

© 2013 David Paul Horowitz, All Rights Reserved

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b. Notice Of Claim Notice Of Claim Failed To Give Notice Of Theory Hammond v. City Of New York, 100 A.D.3d 563, 954 N.Y.S.2d 529 (1st Dep’t 2012) The complaint was properly dismissed because the City demonstrated that it had no prior written notice of the alleged defect and no exception to the noticerequirement applies (citation omitted). There is no evidence that the City created the alleged defect or hazard through an affirmative act of negligence (citation omitted). Plaintiff's contention is supported by nothing more than mere speculation that the alleged height differential between the dirt in the tree well and the surrounding sidewalk was immediately present at the time construction of the tree well was completed, and plaintiff's notice of claim failed to give notice of the theory that the City was affirmatively negligent in failing to install tree gratings or cobblestones (citation omitted). Naming Individual Employee Of Municipality Not Required In Notice Of Claim Goodwin v Pretorius, 105 A.D.3d 207, 962 N.Y.S.2d 539 (4th Dep’t 2013) Generally, a notice of claim is a condition precedent to a tort action against a governmental entity. What about the individual employees of the entity? Must they be named and served with a notice of claim as a condition precedent to a lawsuit against them? The Fourth Department says “No,” declining to follow some of its prior precedents on the subject. A government employee need not be named in or served with a notice of claim as a condition precedent to an action against him or her. NB: The First Department requires a plaintiff to name an individual employee in the notice of claim as a condition precedent to an action against the employee (see Cleghorne v City of New York, 99 .AD.3d 443, 952 N.Y.S.2d 114 [1st Dept 2012]; Tannenbaum v City of New York, 30 A.D.3d 357, 819 N.Y.S.2d 4 [1st Dept 2006]).

© 2013 David Paul Horowitz, All Rights Reserved

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New York County Lawyers Association 2013 C.P.L.R. Update

 

c. Commencing the Action 1. CPLR 2001 Amendment CPLR 2001 was amended in 2007, and the amended statute reads as follows (text added by 2007 Amendment underscored): 2001. Mistakes, omissions, defects and irregularities At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid. CPLR 2001 & Defect In E-Filing Grskovic v Holmes, ___AD3d___, ___NYS2d___, 2013 NY Slip Op 06545 (2d Dep’t 2013) CPLR 2001 permits a court, at any stage of an action, to allow a party to correct a mistake, defect or omission; if a substantial right of a party has not been prejudiced, the court should disregard the mistake, defect or omission. The plaintiff in Grskovic wanted to commence an action in a mandatory e-file county. Plaintiff’s counsel established a temporary user account with the Office of Court Administration’s e-filing system to file the initiatory papers. Unfamiliar with the system, plaintiff’s counsel mistakenly “filed” the initiatory papers in a practice simulation instead of the actual “live” system. Counsel, though, was apparently led to believe by subsequent e-mails from the system that the filing transaction, which occurred within the statute of limitations, was accomplished. Shortly after the statute of limitations expired, plaintiff’s counsel learned that the filing was not achieved in the live system. The Second Department concludes that CPLR 2001 should save the action: the court allows the plaintiff to “correct” the improper filing nunc pro tunc to the date counsel erroneously filed the papers in the practice

© 2013 David Paul Horowitz, All Rights Reserved

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simulation, a correction that made the action timely. N.B.: The court finds that CPLR 2001 recognizes two separate forms of relief: (1) a court may permit a party to correct a mistake upon such terms as may be just, and (2) a court may disregard a mistake if a substantial right of a party is not prejudiced. Thus, under Grskovic, a court has broad discretion to permit a mistake to be corrected even if a party was prejudiced by the mistake, whereas a court may only disregard a mistake if no party was prejudiced by it.

2. Electronic Filing in Supreme Court Uniform Rule 202.5-bb(a)(1)2 provides: There is hereby established a pilot program in which all documents filed and served in Supreme Court in the following civil actions (in the counties specified) shall be filed and served by electronic means: (i) commercial actions in New York County; (ii) tort actions in Westchester County; and (iii) such classes of actions as shall be specified by order of the Chief Administrator of the Courts (excluding matrimonial actions as defined by the Civil Practice Law and Rules, Election Law proceedings, proceedings brought pursuant to Article 78 of the Civil Practice Law and Rules, and proceedings brought pursuant to the Mental Hygiene Law) in any additional counties outside the City of New York as authorized by statute. Except to the extent that this section shall otherwise require, the provisions of section 202.5-b of these rules shall govern this pilot program. Chapter 543 of the Laws of 2011, signed the Governor on September 23, 2011, allows for a substantial expansion of both the mandatory and consensual e-filing programs. By Administrative Order dated January 12, 2012, Chief Administrative Judge A. Gail Prudenti authorized mandatory e-filing in certain actions in the following counties: Supreme Court, Westchester County-all actions except Article 78 proceedings, Election Law proceedings, Matrimonial and Mental Hygiene Law matters; Supreme Court, New York County-all commercial, contract, and tort actions, without regard to the amount in controversy, commenced on or after February 27, 2012;

2

Effective May 19, 2010.

© 2013 David Paul Horowitz, All Rights Reserved

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Supreme Court, Kings County-all commercial actions seeking in excess of $75,000 commenced on or after February 27, 2012; Supreme Court, Bronx County- all medical malpractice actions commenced on or after February 27, 2012; Surrogate’s Court in Chautauqua, Erie, and Monroe Counties- for all probate and administration proceedings and related miscellaneous proceedings commenced on or after March 1, 2012. In addition, the consensual e-filing program has expanded as follows: Supreme Court, Onondaga County-consensual e-filing for commercial, contract, tort, and tax certiorari actions commenced on or after February 28, 2012. Surrogate's Courts in Seventh Judicial District-consensual e-filing for probate and miscellaneous proceedings, miscellaneous related proceedings, and such other types of proceedings as the court may permit. For exemptions to the new rule see Uniform Rule 202.5-bb(e) (“Exemption From the Requirement of Electronic Filing”).

3. Commencement Errors Default Judgment Denied Where Action Not Filed; Prior Service Of Motion Containing Pleading Does Not Save The Day Oyague v. Schwartz, 93 A.D.3d 1044, 940 N.Y.S.2d 686 (3d Dep’t 2012) Plaintiff, a prison inmate, brought a motion dated November 2, 2009, requesting that Supreme Court grant him permission to serve defendants by registered mail, return receipt requested, a summons and complaint sounding in medical malpractice. At the same time, plaintiff also served a copy of this motion, with the summons and complaint attached, on defendants by certified mail, return receipt requested. On November 17, 2009, plaintiff commenced this action by filing the summons and complaint in the Sullivan County Clerk's Office. By decision and order dated December 28, 2009, the court granted plaintiff's motion. Plaintiff thereafter mailed a copy of that order to defendants by regular mail, but failed to serve the summons and complaint. Nonetheless, defendant Mount Vernon Hospital filed a verified answer and plaintiff then moved for an order seeking, among other things, a default judgment against defendant Steven O. Schwartz, M.D., P.C. for failing to respond. Schwartz cross-moved seeking dismissal of the complaint due to plaintiff's failure to effect service in the manner directed by the December 2009 order. The court denied both motions, [Supreme Court denied Schwartz's cross motion seeking to dismiss the complaint for failure to comply © 2013 David Paul Horowitz, All Rights Reserved

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with CPLR 306-b on the basis that plaintiff's 120 days to serve the complaint, when tolled due to the parties' various motions, had not yet run] resulting in this appeal by plaintiff. *** We affirm. To be entitled to a default judgment, plaintiff was required to submit, among other things, proof of proper service of process, including the summons and complaint (citation omitted). Here, the record confirms that plaintiff did not file his summons and complaint with the County Clerk prior to serving Schwartz as required by statute (citations omitted), nor did he follow the procedures for service directed in Supreme Court's order. Accordingly, the motion for a default judgment against Schwartz was properly denied.

4. Venue Governmental Entity May Waive Special Venue Provision Wager v Pelham Union Free School District, 108 A.D.3d 84, 966 N.Y.S.2d 126 (2d Dept’t 2013) New York City Health and Hospitals Corporation Act § 7401(3) provides that an action against NYCHHC must be commenced in the county within New York City in which the cause of action allegedly arose. Can NYCHHC waive this venue provision, allowing NYCHHC to seek consolidation of an action with proper venue under 7401(3) with another action venued in a different county? “Yes,” holds the court in Wager, observing that a “mandatory” venue provision such as 7401(3), which is designed to provide a convenient forum for a governmental entity, may be waived by the defendant for whose benefit the provision was enacted. Plaintiff Does Not Forfeit Choice Of Venue Where Plaintiff Commenced Action Based Upon Defendant’s DMV Records Astillero v. Abramov, 92 A.D.3d 436, 937 N.Y.S.2d 593 (1st Dep’t 2012) Defendant moved to change venue from New York County to Nassau County, and plaintiff cross-moved to change venue to Queens County. Supreme Court granted plaintiff’s motion, denied defendant’s motion, and the First Department affirmed:

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Plaintiff initially chose an improper venue in New York County. However, plaintiff selected this venue based on Department of Motor Vehicle records, which indicated that defendant Asia Abramov resided in New York County. Defendant Abramov had recently moved to Queens County, but failed to notify the Department of Motor Vehicle as required by Vehicle and Traffic Law § 505 (5). Under these circumstances, plaintiff did not forfeit her right to choose a venue by her initial choice of a venue that turned out to be improper (citations omitted). Second Department Affirms Grant Of Venue Change Made Eight Months After Dismissal Of Party Upon Whose Residence Venue Was Based Bonilla v. Tishman Interiors Corp., 100 A.D.3d 673, 953 N.Y.S.2d 870 (2d Dep’t 2012) In an order dated March 4, 2011, the Supreme Court, Kings County, granted the motion of the defendant M & A Plumbing & Heating Corporation (hereinafter M & A) for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Since it is undisputed that M & A was the only party in this action whose presence supported venue in Kings County, the appellants' motion pursuant to CPLR 511 to change the venue of the action to Rockland County, where the plaintiff resided, should have been granted (citations omitted). Even though the appellants did not move for a change of venue until eight months after M & A was dismissed from this action, contrary to the plaintiff's contention, the relief requested was not barred by laches given that no significant discovery had yet taken place and there was no discernable prejudice to the plaintiff (citations omitted). Accordingly, the Supreme Court improvidently exercised its discretion in denying the appellants' motion pursuant to CPLR 511 to change the venue of this action from Kings County to Rockland County. But see, Moracho v. Open Dorr Family Medical Ctr., Inc., 79 A.D.3d 581, 914 N.Y.S.2d 102 (1st Dep’t 2010): Motion to Change Venue Based Upon Dismissal of Party Must be Made “Promptly” The First Department, in a 3-2 decision, reversed a trial court’s order transferring venue from New York County to Westchester County: While there is no statutory time limit for a motion to change venue upon dismissal of a party whose residence provided the basis for venue, this Court has nonetheless required that such motions be made promptly (citations omitted), that is, within a reasonable time after the movant obtains knowledge of the facts supporting the request (citations omitted). It also bears noting that a party need not wait for notice of entry of the order dismissing the improper party before it moves for a change of venue (citation omitted). Here, defendants may have been aware as early as February 28, 2008, fifteen © 2013 David Paul Horowitz, All Rights Reserved

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months before making their motion, that Primary Care Development Corporation, the sole defendant on whose residence venue in New York County was based, sought dismissal of the action against it. Thereafter, Primary Care's September 2008 dismissal motion, made more than eight moths prior to the other defendants' venue applications, was unopposed. By order entered March 4, 2009, the court dismissed Primary Care from the case. In its order, the court explicitly stated that "none of the remaining parties has any connection to New York County and that [the] case is therefor amenable to a motion to change venue". (Emphasis added). FN1 This motion was apparently withdrawn. Notwithstanding this pronouncement, the remaining defendants waited an additional three months, during which time they appeared in New York County and set a trial date, without giving any indication of a venue problem. Two months after the trial date was set, the motion was made to change venue to Westchester. Given these circumstances, the grant of the motion was an improvident exercise of discretion and an implicit endorsement of careless motion practice, in disregard of the important principles of fair notice and judicial economy (citations omitted). Justice Saxe joined a dissent written by Justice Nardelli, contrasting cases “where it was possible for the movant to abide by the procedural mandates of CPLR 511(b), because the grounds for a change of venue as of right existed at the outset, “ with “circumstances such as these, where the designated county was proper when the action was commenced, and thereafter, the sole defendant whose residence made venue in that county proper was eliminated from the action, motions for a change of venue have repeatedly been granted, notwithstanding the absence of any prior demand in the form contemplated as a prerequisite to such a motion by CPLR 511 (citations omitted).” The dissent concluded: A party's time to act in response to an order is generally counted from the time that order is served with notice of entry thereon (citation omitted). Defendants' time in which to move to change venue did not begin to run until the dismissal order entered on March 4, 2009 was served on them; yet, we have no information as to when it was served with notice of entry. Of course, the date when Primary Care made its first motion to dismiss on the grounds that it was not a proper party, February 28, 2008, has absolutely no relevance to this analysis; until the actual dismissal against Primary Care, defendants had no right to bring a CPLR 510(1) © 2013 David Paul Horowitz, All Rights Reserved

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venue motion. The present motion violated no statutory time limits, and, as the majority recognizes, the motion court was entitled to exercise its discretion in connection with this motion. The grant of this motion, made less than three months of entry of the dismissal order, was well within that discretion, and should not be disturbed by this Court. Insufficient Evidence Of Intent To Reside In County Selected For Venue By Plaintiff Forbes v. Rubinovich, 94 A.D.3d 809, 943 N.Y.S.2d 120 (2d Dep’t 2012) Defendant moved for a change of venue after service of the answer without having served a demand to change venue, the trial court denied the motion, and the Second Department reversed: A demand to change venue based on the designation of an improper county (citation omitted) "shall be served with the answer or before the answer is served" (citation omitted). Since the appellant moved for a change of venue after he served his answer, he was not entitled to a change of venue as of right (citation omitted). Thus, his motion became one addressed to the court's discretion (citations omitted). In support of his motion, the appellant submitted evidence establishing prima facie that the plaintiff resided in Richmond County and that the defendants resided in Oneida County. In opposition to the motion, the plaintiff was required to establish through documentary evidence that he intended to retain Kings County as a residence for some length of time and with some degree of permanency (citations omitted). The plaintiff's driver's license, which was issued after the commencement of the action, was irrelevant (citations omitted). Furthermore, aside from a conclusory statement contained in his affidavit that he resided at an address in Kings County prior to commencing this action, the plaintiff failed to present any other evidence sufficient to establish that he resided in Kings County with any degree of permanency at the time this action was commenced (citations omitted). Moreover, the appellant moved promptly to change venue after ascertaining the plaintiff's true residence (citations omitted). Accordingly, that branch of the appellant's motion which was to change the venue of the action from Kings County to Oneida County pursuant to CPLR 510 (1) should have been granted.

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Demand To Change Venue Served For The First Time With Amended Answer Timely Valley Psychological P.C. v. Geico, 95 A.D.3d 1546, 944 N.Y.S.2d 7785 (3d Dep’t 2012) Plaintiff’s action was commenced in Supreme Court, Albany County. Defendant served a demand to change venue with its amended answer, demanding the venue be changed to Nassau County, and therefore moved to change venue alleging that neither party’s principal place of business was located in Albany County. The trial court held that defendant’s demand to change venue as of right was not timely served, but held a change of venue was warranted based upon the convenience of material witnesses. The Third Department affirmed, but upon a finding that the demand to change venue was timely served: We affirm, albeit on different grounds then relied upon by Supreme Court. CPLR 511 (b) provides that a demand to change venue shall be served before or with the answer, and a motion incorporating that demand must be made within 15 days after the demand has been served. Here, as noted, defendant did not serve a demand for a change of venue with its original answer to the complaint, but did so with its amended answer. Supreme Court concluded that the amended answer was filed "solely to allow [defendant] to seek a change of venue," and found that defendant was not entitled as a matter of right to a change of venue. Initially, we note that there is no dispute that defendant had the right to file an amended answer to the complaint (citation omitted), and since that amended answer superceded its prior answer, defendant had the right to serve with it a demand for a change of venue (citations omitted). Since defendant's motion to change venue was filed within 15 days of the service of that demand, Supreme Court should not have denied it as untimely. Parenthetically, we note that the amended answer contained nine additional affirmative defenses and there is no indication that it was filed to delay the prosecution of this action (citation omitted).

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Evidentiary Showing Supports Change Of Venue For Convenience Of Material Witnesses Seguin v. Landfried, 96 A.D.3d 1433, 945 N.Y.S.2d 902 (4th Dep’t 2012) The trial court denied defendant’s motion to change venue based upon the convenience of the material witnesses, and the Fourth Department reversed: We agree with defendants-appellants (defendants) that Supreme Court improvidently exercised its discretion in denying their respective motions pursuant to CPLR 510 (3) seeking to change the venue of this medical malpractice action from Erie County to Genesee County (citation omitted). In support of their motions, defendants provided, inter alia, the physicians' affirmations and nurses' affidavits of 14 nonparty witnesses who treated Lawrence D. Seguin (plaintiff) at defendant United Memorial Medical Center in Genesee County and at Strong Memorial Hospital in Monroe County. The nonparty witnesses stated the nature of their treatment of plaintiff and their respective reasons for the inconvenience of traveling from their respective homes or places of work to Erie County (citations omitted). Plaintiff Kathleen M. Seguin, who has asserted a derivative cause of action, moved to Erie County several months following plaintiff's treatment and it is upon the basis of her residence that the action was commenced in Erie County. Plaintiffs have "failed to demonstrate any other consideration that would favor [Erie] County as the proper venue of this action" (citations omitted). We therefore conclude that defendants established that "the convenience of material witnesses and the ends of justice will be promoted by the change" of venue (citations omitted). Insufficient Evidentiary Showing Requires Denial Of Motion To Change Venue Atlantic Mutual Ins. Co. v. M. H. Kane Constr. Corp., 100 A.D.3d 564; 954 N.Y.S.2d 530 (1st Dep’t 2012) The trial court granted defendant’s motion to change venue, and the Second Department reversed: Defendants' initial moving papers provided the names, addresses and occupations of four prospective nonparty witnesses in Suffolk County, but failed to make the requisite showing that those witnesses were actually contacted and were willing to testify, or to set forth the substance and materiality of their testimony (citation omitted). Nor did defendants provide any reason why traveling to New York County would constitute a hardship for those witnesses (citations omitted). Defendants' attempt to cure these deficiencies in their reply papers was improper (citation omitted). In any event, defendants failed to demonstrate that the © 2013 David Paul Horowitz, All Rights Reserved

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proposed testimony of the nonparty witnesses, concerning defendants' claim that the County of Suffolk wrongfully declared defendant M.H. Kane Construction Corp. in default under a construction contract, would be material in the instant case in which plaintiff, a surety on performance bonds issued in connection with the construction project, seeks to recover pursuant to an indemnity agreement executed by defendants (citation omitted). Venue Changed For Impartial Trial Pruitt v. Patsaloo, 96 A.D.3d 924, 946 N.Y.S.2d 486 (2d Dep’t 2012) The trial court denied a motion to change venue, and the Second Department reversed: To obtain a change of venue pursuant to CPLR 510 (2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed (citations omitted). Under the circumstances of this case, including the evidence demonstrating that the defendant is a retired Orange County Supreme Court Justice, who presided in that court for more than two decades, that his relative is a retired Orange County Court Judge, and that the defendant's daughter is a Support Magistrate in the Orange County Family Court, the protection of the court from even a possible appearance of impropriety requires a change of the venue of the action from Orange County to Dutchess County (citations omitted). Accordingly, the Supreme Court should have granted the plaintiffs' motion pursuant to CPLR 510 (2) to change the venue of the action from Orange County to Dutchess County. Statistics Concerned With Consanguinity Of Randomly Selected Jurors Not Persuasive In Support Of Motion To Change Venue Blaine v. IBM, 91 A.D.3d 1175, 937 N.Y.S.2d 405 (3d Dep’t 2012) A jury drawn by lot and six degrees of separation were alleged in support of a motion to change venue: This is one of nine similar actions alleging that defendant released toxic chemicals from its manufacturing facility in the Village of Endicott, Broome County into the environment, thereby contaminating the air and groundwater, causing the plaintiffs in each action to suffer medical problems and real estate devaluation, among other things. The complaints are extremely similar and were filed by the same counsel. Discovery, motion practice and trial schedules of all nine actions have been consolidated and handled through case management orders. The parties © 2013 David Paul Horowitz, All Rights Reserved

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agreed that the first trial, scheduled for the fall of 2012, would only address the claims of a limited number of plaintiffs. Defendant moved to change venue to one of three neighboring counties on the basis that an impartial trial could not be held in Broome County (citation omitted). Supreme Court denied that motion without prejudice to renew at the close of voir dire, and severed the claims of eight individual plaintiffs — the members of two families--to be heard at the first trial. [Defendant mentions that, although the parties agreed that only some plaintiffs would be involved in the first trial, no party moved for severance. Defendant does not, however, challenge Supreme Court's ability to sever the claims of certain parties sua sponte, or the propriety of the severance here (citation omitted)]. Defendant appeals the denial of its motion. We affirm. A trial court's disposition of a discretionary motion for change of venue will not be disturbed absent an abuse of discretion (citations omitted). To prevail on the motion here, defendant was required to demonstrate a strong possibility that an impartial trial could not be obtained in Broome (citations omitted). In an effort to make such a demonstration, defendant argued that the jury pool contained a large number of relatives of plaintiffs in the nine actions, as well as defendant's former employees and their families. Having considered these arguments, we cannot conclude that Supreme Court abused its discretion in denying defendant's motion. Any relative within six degrees of consanguinity or affinity to a party is automatically disqualified from jury service (citation omitted). Defendant submitted an expert report from a demographer and statistician who determined that there is a 28.6% chance that at least one juror on a randomly selected jury of six individuals and two alternates from Broome County would be related to one of the 943 plaintiffs. A major flaw in this statistic is that juries are not randomly selected. Jury questionnaires and the voir dire process should filter out relatives and decrease the chances of empaneling such a person. While we acknowledge that some jurors or parties may not know all of their distant relatives within the sixth degree of consanguinity or affinity--such as their great-great-grandnephews--the statistic proffered by defendant is misleading. Random selection of a jury would include not only those distant and possibly unknown relatives, but also close relatives--such as parents, children and siblings--who would almost certainly be known to the parties and potential jurors. Including those close relatives in the calculations skews the statistics, significantly decreasing the reliability of such numbers. On that basis alone, Supreme Court could have found that defendant did not meet its burden. Thus, the court did not abuse its discretion in denying the motion to change venue without prejudice to renew. Additionally, when Supreme Court severed the claims of two families from the remainder of the plaintiffs in this action, it created two separate actions (citation omitted), rendering the eight individual members of those families the only party plaintiffs in the severed action. As CPLR 4110 (b) only disqualifies relatives of a "party" to the action from serving on the jury, relatives of the 935 plaintiffs in the © 2013 David Paul Horowitz, All Rights Reserved

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related actions are not automatically disqualified under that subdivision. They may, however, be removed for bias or favor (citation omitted). The distinction is important. If a relative of a party within six degrees of consanguinity or affinity is seated on the jury, the verdict can be annulled up to six months after it is rendered, without any need to show prejudice (citations omitted). On the other hand, a distant relative--such as a first cousin twice removed--of a party in one of the related actions need only be disqualified if he or she is aware that a relative has a pending claim against defendant and, as a result, cannot be impartial, or is in some other way biased. The failure to remove such a person from the jury panel will not result in a mandatory annulment of the verdict (compare CPLR 4110 [b]). Defendant's expert asserted a more than 70% chance of randomly selecting a jury without relatives of any of the 943 plaintiffs. Adjusting for the non-random selection of juries and the limited number of party plaintiffs in the first trial, there would seem to be a high probability of selecting a jury without any relatives of a party involved in that trial. [Previous actions arising from highly-publicized toxic torts have been venued in the same county where the environmental contamination occurred, most notably the Love Canal actions involving "600 separate unconsolidated actions and approximately 1,400 plaintiffs" in Niagara County]. Similarly, although 24,000 of defendant's former employees are alleged to be living in Broome County, only persons "in the employ of a party" are specifically listed in the statute as subject to a challenge to the favor from serving as jurors in that trial (citation omitted). The statute does not provide a ground for challenging potential jurors based on a former employment relationship. Although former employees or their family members may have knowledge related to the action, may have an interest in defendant due to a pension or may otherwise have a bias for or against defendant, such biases may be addressed through a comprehensive juror questionnaire sent to prospective jurors before jury selection and through the jury selection process itself (citation omitted). Here, Supreme Court stated that it would exclude defendant's former employees, as well as residents of the Village of Endicott, who may be affected by or have preconceived notions about the environmental contamination there. Nevertheless, the potential jury pool contained more than 67,000 people, leaving plenty to choose from even with all of the potential disqualifications. [Although defendant emphasizes that Broome County's qualified jury list contained only 4,592 names, prior to trial more individuals could be qualified and more names could be added to the list from the County's total pool of 67,551 potential jurors.]. Thus, the court did not abuse its discretion in denying defendant's motion without prejudice to renew at the close of voir dire, thereby permitting the parties to make a reasonable attempt at selecting an impartial jury (citations omitted).

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5. Service of Process A. CPLR 306-b § 306-b. Service of the summons and complaint, summons with notice, thirdparty summons and complaint, or petition with a notice of petition or order to show cause [Until Jan 1, 2012, § 306-b reads as set out below:] Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice, third-party summons and complaint, or petition, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service. [Eff Jan 1, 2012, § 306-b reads as set out below:] Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the [fig 1] commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service. CPLR 308(5) Alternate Service By Email Safadjou v Mohammadi, 105 A.D.3d 1423, 964 N.Y.S.2d 801 (4th Dep’t 2013) Service of process is governed principally by CPLR article 3. With respect to individuals, CPLR 308 is the main service provision. CPLR 308 specifies several ways service can be effected on a defendant. If service under the specified methods proves “impracticable” the court can devise a method of service (CPLR 308[5]), provided that method is reasonably calculated to provide the defendant with notice of the action. In Safadjou, the Appellate Division © 2013 David Paul Horowitz, All Rights Reserved

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sustains service on a defendant located in Iran by e-mail because the plaintiff demonstrated that the defendant used the e-mail addresses to which the process was e-mailed. NB: The issue of service under CPLR 308(5) by technological means is an evolving one (see Higgitt, The Emergence of “E-Service” Under CPLR 308(5), Oct. 2013 New York State Bar Journal, at 28-33). Court May Only Grant Or Deny Application For Additional Time To Serve When Statute Of Limitations Has Run Henneberry v. Borstein, 91 A.D.3d 493, 937 N.Y.S.2d 177 (1st Dep’t 2012) The First Department, citing Leader,3 holds that when an application is made pursuant to CPLR 306-b for additional time to serve after the expiration of the applicable statute of limitations, a court may only dismiss the action or grant the application. It cannot dismiss the action “without prejudice,” to allow recommencement. The court also stressed that the two provisions for an extension are defined by separate criteria, and that “interest of justice” can accommodate law office failure. The procedural route in the trial court and the decision of the First Department are worth reviewing in detail: Plaintiff, proceeding pro se, brought the 2007 Action against defendant attorneys and their firm, asserting claims of legal malpractice and breach of fiduciary duty in their representation of her in an arbitration against a former employer. That arbitration concluded on December 4, 2004 with a decision adverse to plaintiff. Plaintiff commenced the 2007 Action by filing a summons with notice on November 19, 2007, just under a month before the expiration of the applicable three-year statute of limitations (see CPLR 214 [6]). On March 13, 2008, within 120 days of the filing of the summons with notice, plaintiff arranged for a licensed process server to serve defendants in accordance with CPLR 306-b. She subsequently filed two affidavits of service with the court. On April 1, 2008, 19 days later, defendants submitted a notice of appearance and a demand for a complaint. Plaintiff served a summons and complaint upon defendants on April 28, 2008. On November 7, 2008, approximately six months later, after having sought and 3

Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-106, 761 NE2d 1018, 736 NYS2d 291 (2001).

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obtained numerous adjournments, defendants moved to dismiss the 2007 Action, on a number of grounds, including lack of personal jurisdiction. Plaintiff, now represented by counsel, cross moved for, inter alia, an extension of time to effect service pursuant to CPLR 306-b. While the parties' motions were pending, plaintiff filed the 2009 Action, which contained substantially the same substantive claims. She did so to protect her claims in the event that the 2007 Action was terminated on a ground subject to revival under CPLR 205 (a). Next, on June 19, 2009, defendants moved to dismiss the 2009 Action, arguing that there was an identical action pending before the court (CPLR 3211 [a] [4]). On July 23, 2009, the court held a traverse hearing regarding the validity of the March 13, 2008 service. In the first order appealed from, Justice Tingling dismissed the 2007 Action for lack of personal jurisdiction (based on improper service), without prejudice, and granted plaintiff's cross motion for an extension of time to effect service pursuant to CPLR 306-b, on condition that she purchase a new index number and properly serve a summons and complaint within 30 days after service of the order with notice of entry. In the second order appealed from, issued contemporaneously with the first, Justice Tingling dismissed the 2009 Action based upon the pendency of another identical action (citation omitted). Following the court's directive in the first order, on February 11, 2010 plaintiff commenced the 2010 Action. In the third order appealed from, Justice Ramos dismissed that action as untimely. Plaintiff challenges each of these three orders. The unintended effect of the disposition of the first two orders appealed from was to deprive plaintiff of an opportunity to pursue her timely filed lawsuit, based entirely upon her failure to effectively complete the ministerial act of properly serving defendants within 120 days of the filing of notice. This was error. CPLR 306-b provides, as relevant: Service of the summons and complaint, summons with notice, … shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice … . If service is not made upon a defendant within the time period provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." The statute requires that a defendant challenging service move to dismiss on that ground (citation omitted). In deciding such a motion, the express language of CPLR 306-b gives the court two options: dismiss the action without prejudice; or extend the time for service in the existing action. Here, defendants made their motions after the statute of limitations had expired. In these circumstances, the court's options were limited to either dismissing the action outright, or extending the time for plaintiff to properly effect service. The first order appealed from dismissed the action, without prejudice to the filing © 2013 David Paul Horowitz, All Rights Reserved

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of a new action, and granted plaintiff's cross motion for an extension of time to effect service. This directive was internally inconsistent, and it led plaintiff to file the 2010 action, later dismissed as untimely (citations and parentheticals omitted).The court should have limited its ruling in the first order on appeal to granting plaintiff's cross motion for an extension of time to effect service pursuant to CPLR 306-b (citation omitted). CPLR 306-b authorizes an extension of time for service in two discrete situations: "upon good cause shown" or "in the interest of justice" (citation omitted). The Court of Appeals has confirmed that the "good cause" and "interest of justice" prongs of the section constitute separate grounds for extensions, to be defined by separate criteria (citation omitted). The Court stated, "Our analysis is buttressed by an examination of the legislative history behind the amendment [to CPLR 306b]. The New York State Bar Associations Commercial and Federal Litigation Section Committee on Civil Practice Law and Rules characterized the interest of justice standard as more flexible' than the good cause standard, specifically noting that '[s]ince the term "good cause" does not include conduct usually characterized as "law office failure," proposed CPLR 306-b provides for an additional and broader standard, i.e., the "interest of justice," to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant'". (Citation omitted [emphasis in original]). A "good cause" extension requires a showing of reasonable diligence in attempting to effect service upon a defendant. At least one Appellate Division decision has suggested that good cause is likely to be found where "the plaintiff's failure to timely serve process is a result of circumstances beyond [its] control" (citation and parenthetical omitted). Even if this case does not qualify for an extension under the "good cause" exception (citation omitted), we find that it qualifies under the "interest of justice" category. Under this prong of CPLR 306-b, the Court of Appeals has instructed that a court "may consider [plaintiff's] diligence, or lack thereof, along with any other relevant factor . . ., including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" (citation omitted). Here, plaintiff's attempted March 2008 service, although ultimately deemed defective, was a diligent attempt by a pro se plaintiff to hire a process server to serve defendants at their law firm, within 120 days of the timely filing of a summons with notice. By the time the court ruled on the motions in the 2007 Action, the statute of limitations had expired, precluding the filing of a new action. In addition, defendants were aware of the 2007 Action and appeared to demand a complaint as early as April 2008--they were not prejudiced by the service errors and were afforded full participation in discovery (citation omitted). Finally, construing the pleading in the light most favorable to plaintiff, as is required on consideration of a CPLR 3211 motion to dismiss, we find that it © 2013 David Paul Horowitz, All Rights Reserved

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asserts actions and omissions by defendants that support viable claims for recovery (citation omitted). Khedouri v Equinox (citation omitted) and Shelkowitz v Rainess (citation omitted), cited by the defense in support of dismissing the action, are both distinguishable on their facts. In Khedouri, the court found that dismissal was warranted because plaintiff made no attempt to serve the defendant, a fitness corporation, within 120 days of filing the summons and complaint. In addition, this Court found no merit to the plaintiff's underlying claims, given the voluntary assumption of risks inherent in fitness training (citation omitted). Similarly, dismissal was granted in Shelkowitz, a personal injury action involving the accumulation of snow and ice at the defendant's building, where plaintiff made no attempt to serve the defendant within 120 days of the filing of the action, and the extension request was made 20 months after filing the complaint (citation omitted). Here, unlike both Khedouri and Shelkowitz, plaintiff attempted service within the 120-day period, defendants were aware of the action soon after the filing of the complaint, and, viewing the amended pleading in the light most favorable to plaintiff, we find it sets forth actionable claims (citations omitted). Granting plaintiff the opportunity to pursue this action is not only consistent with the "interest of justice" exception set forth in CPLR 306-b, but also with our strong interest in deciding cases on the merits where possible (citation omitted). Accordingly, given our conclusion that the 2007 Action qualified for an extension of time to effect service pursuant to CPLR 306-b, we reverse the third order appealed from and deem the complaint in the 2010 Action to be an amended complaint in the 2007 Action. “Interest Of Justice” Warranted Extension Of Time To Serve Meritorious Action Nicodene v. Byblos Restaurant, 98 A.D.3d 445, 949 N.Y.S.2d 684 (1st Dep’t 2012) The First Department held: “Albeit unsuccessfully, plaintiff attempted to effect service before the statute of limitations expired. In light of plaintiff’s prima facie showing of the merit of his claim, his prompt contact with defendants’ carrier, the settlement negotiations with the carrier and the absence of prejudice to defendants, an extension of time to effect service is warranted.”

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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. But see Fried v Jacob Holding, Inc., 110 A.D.3.d 56, 970 N.Y.S.2d 260 (2d Dep’t 2013) Court May Grant Relief Requested By Non-Moving Party Without A Cross-Motion 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. © 2013 David Paul Horowitz, All Rights Reserved

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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. No To “Good Cause;” Yes To “Interest Of Justice” Moss v. Bathhurst, 87 A.D.3d 1373, 930 N.Y.S.2d 695 (4th Dep’t 2012) The trial court denied defendant’s motion to dismiss and granted plaintiff’s motion to extend the time in which to serve defendant, and the Fourth Department affirmed. While finding that plaintiff had failed to establish good cause for an extension of time for service upon defendant, that determination is not dispositive of the issue before the court: "[A]lthough law office failure and the lack of reasonable diligence in effectuating service generally do not constitute good cause, the interest of justice standard of the statute [is] a separate, broader and more flexible provision [that may] encompass a mistake or oversight as long as there was no prejudice to the defendant" (citation omitted). After weighing the relevant factors, including the "expiration of the [s]tatute of [l]imitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of . . . plaintiff's request for the extension of time, and prejudice to defendant" (citation omitted), and noting that no one factor is more important than the others, we reject defendant's contention that Supreme Court abused its discretion in denying her motion and granting plaintiff's cross motion.

B. CPLR 308 Traverse Ordered On Service Issue Gray-Joseph v. Lieu, 90 A.D.3d 988, 934 N.Y.S.2d 868 (2d Dep’t 2011) The trial court directed a hearing to determine the validity of service of process upon defendant pursuant to CPLR 308(2), and the Second Department affirmed: The Supreme Court properly directed a hearing to determine the validity of service of process upon the defendant Shuhai Liu to aid in the disposition of that branch of the plaintiff's motion which was for leave to enter a default judgment against Liu, upon his failure to appear or answer the complaint, and that branch of © 2013 David Paul Horowitz, All Rights Reserved

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the defendants' cross motion which was to dismiss the complaint insofar as asserted against Liu for lack of personal jurisdiction. CPLR 308 (2) authorizes service of process to be made by delivery to a person of suitable age and discretion at the defendant's actual place of business, dwelling place, or usual place of abode, and by mailing process to the defendant at either his or her last known residence or actual place of business. Jurisdiction is not acquired pursuant to CPLR 308 (2) unless both the delivery and mailing requirements have been strictly complied with (citations omitted). However, a minor error in the address to which a summons is mailed will not render service of process void where "it is virtually certain that the summons will arrive" at its intended destination (citation omitted). Here, the affidavits of the plaintiff's process server submitted in support of the plaintiff's motion, and Liu's affidavits, submitted in opposition to the motion and in support of the defendants' cross motion, raised issues of fact as to whether the process server delivered the summons and complaint to a person of suitable age and discretion at Liu's dwelling place and whether the envelope in which the summons and complaint were mailed, despite the failure to specify the apartment number, was virtually certain to arrive at Liu's last known residence (citations omitted). Trial Court Determination Of Valid Service After Traverse Reversed; Tunnel Connecting Buildings Not Good Enough Samuel v. Brooklyn Hosp. Ctr., 88 A.D. 3d 979, 931 N.Y.S.2d 675 (2d Dep’t 2011), leave denied 2012 N.Y. LEXIS 2025 (2012) The plaintiff commenced this action against Brooklyn Hospital Center (hereinafter BHC) and Anders J. Cohen, D.O., to recover damages for medical malpractice. In September 2008 and October 2008, the plaintiff's process servers went to the BHC building located at 121 DeKalb Avenue in Brooklyn to serve the subject summons and complaint upon Cohen. In September 2008, the summons and complaint were delivered to the supervisor of BHC's Health Information Management Department at 121 DeKalb Avenue. In October 2008, the summons and complaint were delivered to an individual who worked in BHC's Risk Management Department, which also was located at 121 DeKalb Avenue. During the times of the attempted service, Cohen was not an employee of BHC, but had privileges there, and maintained an office in a building located within the BHC campus. Cohen's office was located at 240 Willoughby Street, which is a separate building from 121 DeKalb Avenue; however, the two buildings are connected via a series of tunnels and corridors. After a hearing on the issue of the validity of service of process, the Supreme Court determined that service had been properly effected upon Cohen. We reverse. As relevant herein, CPLR 308 (2) permits personal service on a natural person "by delivering the summons within the state to a person of suitable age and © 2013 David Paul Horowitz, All Rights Reserved

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discretion at the actual place of business" of the person to be served and, within 20 days thereafter, mailing a copy of the summons to the actual place of business in a specified manner (citation omitted). CPLR 308 (2) requires strict compliance and the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made (citations omitted). Under the circumstances of this case, the plaintiff failed to establish by a preponderance of the evidence that service was properly effected at Cohen's actual place of business (citations omitted). Affidavit Of Defendant Overcomes Presumption Of Valid Service Goralski v. Nadzan, 89 A.D.3d 801, 932 N.Y.S.2d 376 (2d Dep’t 2012) The Second Department reversed a trial court’s determination upholding service: The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (citations omitted). Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service (citations omiotted). However, where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence (citations omitted). The defendant's sworn, detailed, and specific statements that he no longer resided at the address recited in the process server's affidavit of service when service of the summons and complaint was purportedly made pursuant to CPLR 308 (2) were sufficient to rebut the process server's affidavit of service. In opposition, the plaintiff failed to submit documentary evidence sufficient to establish that the address where the process was served was the defendant's dwelling place, usual place of abode, or last known residence. Under these circumstances, the defendant is entitled to a hearing on the issue of whether service was properly effected pursuant to CPLR 308 (2) (citations omitted). Thus, we remit the matter to the Supreme Court, Suffolk County, for a hearing to determine whether the defendant was properly served and, thereafter, for a new determination of his motion to vacate his default and to dismiss the complaint for lack of proper service on him. CPLR 308(2)’s Twenty-Day Period for Filing Proof of Service Does Not Apply in Civil Court Rodriguez v. Rodriguez, 103 A.D.3d 117, 957 N.Y.S.2d 699 (2d Dep’t 2013) Writing for a unanimous court, Justice Levanthal framed the issue and decision before the Second Department:

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On this appeal, we are asked to decide whether the 20-day time period to file proof of service of process, when service is made entered upon a person of suitable age and discretion pursuant to CPLR 308(2), applies to an action commenced in the Civil Court of the City of New York. For the reasons discussed below, we find that the 20-day time period does not apply. Defendant defaulted in the Civil Court action, and therafter successfully moved to vacate the default judgment. On appeal, the Appellate Term “found that the plaintiff's failure to file proof of service within the 20-day period set forth in CPLR 308(2) rendered the default judgment a nullity.” Plaintiff appealed for leave to appeal to the Second Department, arguing “that the Appellate Term erred in applying the 20-day time period to file proof of service pursuant to CPLR 308(2) to this action because the New York City Civil Court Act (hereinafter the CCA) has its own provisions regarding the filing of proof of service.” The Second Department examined the interplay between the CPLR and CCA, and focused on the 2005 amendments to several service-related provisions in the CCA enacte when the Civil Court moved to a commencement by filing scheme: A review of the foregoing provisions makes clear that the 20-day time period to file proof of service contained in CPLR 308(2) was never applicable to an action commenced in the Civil Court because, prior to 2005, proof of service had to be filed within 14 days of service. Presently, there is no deadline to file proof of service in an action commenced in the Civil Court (see CCA 409). In practical terms, this means that a defendant's time to answer a complaint in the Civil Court is not triggered until proof of service is filed, unless that defendant was personally served (see CCA 402 [if personally served, a defendant has 20 days to appear and answer; if not personally served, a defendant has 30 days from filing of proof of service to appear and answer]; 410). Multiple Service Attempts At Residence During Business Hours Serraro v. Staropoli, 94 A.D.3d 1083, 943 N.Y.S.2d 201 (2d Dep’t 2012) At issue was whether service under CPLR 308(4) was valid. Here, the process server attempted to personally deliver a summons and complaint to each defendant at © 2013 David Paul Horowitz, All Rights Reserved

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their shared home on four different weekdays: March 6, 2007, at 8:00 a.m., March 21, 2007 at 6:50 p.m., April 4, 2007 at 5:10 p.m., and April 5, 2007, at 4:05 p.m. After all four attempts proved unsuccessful, the process server affixed a copy of each summons and complaint to the front door of the defendant’s shared home and mailed a copy to that same address. The Second Department held that the “due diligence” requirement was not met as the process server did not make any inquiries about defendants’ work schedules or their respective business addresses. He simply reviewed the residential address on each summons and complaint, and made four attempts at personal service at that address. Furthermore, plaintiffs knew that defendant owned and operated a service station less than a mile from the parties’ neighboring homes, but inexplicably, the process server was unaware of this and he never attempted to personally deliver a summons and complaint at that location. Furthermore, each of the process server’s attempts at personal service “was made on weekdays during hours when it reasonably could have been expected that defendants were either working or in transit to work.” Service At Defendant’s Office On National Holiday & Outside Of Regular Business Hours Insufficient; Plaintiff Permitted An Extension Of Time To Serve Rather Than Re-Filing Prudence v. Wright, 94 A.D.3d 1073, 943 N.Y.S.2d 185 (2d Dep’t 2012) Court dismissed legal malpractice action for lack of personal jurisdiction based upon insufficient service pursuant to CPLR 308(4). The affidavit of service of plaintiff’s process server alleged that the process server attempted to deliver the summons and complaint to the defendant at her “dwelling house” or “usual place of abode,” rather than her actual place of business, on January 19, 2009, at 7:17 p.m., January 26, 2009, at 6:51

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a.m., and February 25, 2009, at 4:03 p.m. After all three unsuccessful attempts, the process server affixed a copy of the summons and complaint to defendant’s door and mailed a copy to the same address, which was alleged to be defendant’s “last known residence.” Contrary to these averments in the affidavit of service, defendant presented proof, inter alia, that the address where service was attempted, as alleged in the affidavit of service, was in fact her office address. The court held defendant established plaintiff’s process server failed to exercise “due diligence” because two of the three attempts at service were at times defendant could not reasonably be expected to be at work, a national holiday (1/19/09) and at 6:51 a.m. on 1/26/09; and no attempt to effectuate service was made at defendant’s actual “dwelling place or usual place of abode” nor did the process server make genuine inquiries to ascertain defendant’s actual residence or place of employment. The Second Department directed the following relief: Under these circumstances, the service of the summons and complaint pursuant to CPLR 308 (4) was defective as a matter of law (citations omitted). Since the Supreme Court had not acquired personal jurisdiction over the defendant, the default judgment entered against her was a nullity (citations omitted). Accordingly, the defendant's motion, in effect, to vacate the judgment entered upon her default and to dismiss the complaint on the ground of lack of personal jurisdiction should have been granted. We note that the action was timely commenced by filing the summons and complaint in the office of the Clerk of Kings County. Under the circumstances of this case, despite the dismissal of the complaint on the ground of lack of personal jurisdiction, the plaintiff should be permitted, if she be so advised, to re-serve the appellant within 120 days of the date of this decision and order (citations omitted).

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Failure Of Proof At Traverse Hearing U.S. Bank Assoc. v. Murillo, 2011 N.Y. Slip Op. 33517(U) (Supreme Court Nassau Co.) (Winslow, J.) The trial court vacated plaintiff bank’s foreclosure action judgment, finding that the service upon defendant by plaintiff’s process server was “null and void.” This holding was based upon the record at the traverse hearing, to wit the server’s questionable credibility regarding service coupled with his failure to produce his service records as required to be kept by GBL §89-U.

C. Vehicle and Traffic Law §253 Third Department Abandons Holding In Reynolds v. Koh4 & Aligns With Second & Third Departments In Upholding Hague Service By Mail New York State Thruway Auth. v. Fenech, 94 A.D.3d 17, 938 N.Y.S.2d 654 (3d Dep’t 2012) Plaintiff sued to recover damages to the underside of a bridge allegedly caused by defendant’s tractor-trailer. Court held plaintiff’s service of process upon the Canadian Ds, the driver and owner of the tractor-trailer, by mail pursuant to V&T Law §253, was permitted by article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No. 6638 [1969]), which preserves a litigant’s freedom to “send” judicial documents, by postal channels, directly to persons abroad in the absence of any objection by the destination state. Canada has no objection to the service of judicial documents coming from abroad directly by mail to their territory. The Third Department rejected its own prior precedent and aligned itself with the Second and Fourth Departments. 4

109 A.D.2d 97, 490 N.Y.S.2d 295 (3d Dep’t 1985).

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The First Department has followed the prior Third Department holding, most recently in 2001. See, Sardanis v. Sumitomo, 279 A.D.2d 225, 718 N.Y.S.2d 66 (1st Dep’t 2001), but see, Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.I., 78 A.D.3d 137, 910 N.Y.S.2d 418 (1st Dep’t 2010)(Distinguishing Sardanis vis a vis consent issue).

D. BCL §306 Extension To Answer Granted Where Plaintiff Was Responsible For Forwarding Defendant’s Mail, Including Service Mailings By Secretary Of State; Unusual Facts Pryor v. Witter, 96 A.D.3d 572, 946 N.Y.S.2d 573 (1st Dep’t 2012) After noting that personal jurisdiction was obtained over defendant, a domestic corporation by delivery of a copy of the summons and complaint to the Secretary of State pursuant to BCL §306(b), the court noted that defendant did not receive notice of the action from the Secretary of State because it did not update that office with its new corporate address and instead relied upon plaintiff, who occupied defendant’s old address, to collect and forward defendant’s mail. Under these circumstances and defendant’s prompt application to remedy its default, the court granted defendant’s motion for an extension of time to answer the complaint.

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II. Statutes of Limitation & Jurisdiction a. Statute of Limitations 1. Accrual & Running Of Statute Of Limitations Statute Of Limitations Accrues When Probationary Service Ends, Not When Internal Appeals Procedures Were Exhausted Kahn v. New York City Dep’t of Educ., 18 N.Y.3d 457, 940 N.Y.S.2d 540 (2012) Three probationary teachers were terminated and the Court of Appeals resolved the accrual issue: These cases call upon us to decide whether petitioners Leslie Kahn and Doreen Nash (collectively, petitioners) were required to exhaust an available internal appeal procedure before challenging the termination of their probationary employment at the City of New York's Department of Education (the Department or DOE). The Department is obligated by its collective bargaining agreement (CBA) with the United Federation of Teachers and its own bylaws to afford probationary employees the opportunity for reconsideration of a decision to discontinue their employment. We hold that DOE's decisions were "final and binding" within the meaning of CPLR 217 (1) as of the dates when Kahn's and Nash's probationary service ended, January 25, 2008 and July 15, 2005, respectively. Petitioners awaited the outcome of the internal reviews provided for under the CBA and DOE's bylaws before commencing suit. But these reviews "stem[] solely from the [CBA]" and constitute "an optional procedure under which a teacher may ask [DOE] to reconsider and reverse [its] initial decision, … which is final and which, when made, in all respects terminates the employment of a probationer under Education Law § 2573 (1) (a)" (citation omitted); they are not administrative remedies that petitioners were required to exhaust before litigating the termination of their probationary employment. As a result, petitioners' lawsuits, brought more than four months after the dates when their probationary service ended, are timebarred. Right To Demand Payment, Not Time When Demand Is Made, Is Accrual Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765, 944 N.Y.S.2d 742 (2012) Plaintiff purchased a series of insurance policies from defendants as part of a comprehensive and complex insurance program. Defendant retained the right to demand © 2013 David Paul Horowitz, All Rights Reserved

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payment from the insured for amounts due it under the contract. Plaintiff sought dismissal of defendants’ counterclaim alleging breach of contract for failure to make the payments, and the Court of Appeals held that the claim was time-barred by the six-year statute of limitations: We agree with Hahn and the Appellate Division majority that it is reasonable to apply this accrual principle to the insurance contracts at issue here and therefore conclude that the statute of limitations on Zurich's counterclaims began to run when it acquired the right to demand payment of the various amounts owed under the policies. Zurich acknowledges that it had the right under its contracts to bill Hahn years earlier for many of the sums reflected in the April 2005, March 2, 2006 and March 27, 2006 invoices--in some instances more than a decade earlier-but failed to do so through inadvertence. Hence, the courts below properly determined that any debts for which Zurich had the legal right to demand payment prior to May 2000, i.e., more than six years before the commencement of this action, are time-barred. [FN4: Counterclaims are "deemed interposed when the plaintiff filed the main action" (Siegel, NY Prac § 48, at 67 [5th ed]; see also CPLR 203 [d])]. To hold otherwise would allow Zurich to extend the statute of limitations indefinitely "by simply failing to make a demand" (citations omitted). CPLR 214(2) Governs Claim For Claim For Deception Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 944 N.Y.S.2d 732 (2012) Plaintiffs alleged GBL §349 claims were not timely inasmuch as plaintiff alleged no deceptive acts within three years of the interposition of the claim: We conclude, however, that plaintiffs' claim under the General Business Law is barred by the statute of limitations. General Business Law § 349 prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service," and allows any person injured by a violation of the section to recover damages (General Business Law § 349 [a], [h]). Plaintiffs claim that Verizon acted deceptively by attaching its box to their building without telling plaintiffs that that act entitled plaintiffs to compensation, and by falsely telling plaintiffs that Verizon had a right to affix the box. We assume (without deciding) that these allegations state a legally sufficient claim under section 349. That claim is subject to the three-year limitations period imposed by CPLR 214 (2), which applies to actions "to recover upon a liability … created or imposed by statute" (citation omitted). The complaint here alleges no successful deception of © 2013 David Paul Horowitz, All Rights Reserved

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plaintiffs within three years of the time the action was brought, and thus Verizon's statute of limitations defense to the General Business Law claim is prima facie valid. The Appellate Division, relying on General Stencils v. Chiappa (citations omitted), held that Verizon was estopped from raising a statute of limitations defense because (assuming the complaint's allegations to be true) Verizon concealed its wrongdoing from plaintiffs and so prevented them from bringing a timely lawsuit. But General Stencils and Simcuski are not in point. In these cases, the complaints alleged both the tort that was the basis of the action and later acts of deception by which the defendants concealed their wrongdoing: In General Stencils, the defendant misappropriated the plaintiff's funds, and then used her position as the plaintiff's bookkeeper to cover up what she had done (citation omitted); in Simcuski, the defendant doctor committed malpractice and then falsely told the plaintiff that her resulting physical problems "were transient and … would disappear" (citation omitted). By contrast, in cases where the alleged concealment consisted of nothing but defendants' failure to disclose the wrongs they had committed, we have held that the defendants were not estopped from pleading a statute of limitations defense (citations and parentheticals omitted). Plaintiffs here have not alleged an act of deception, separate from the ones for which they sue, on which an equitable estoppel could be based. Plaintiffs, relying on Gaidon, argue that the statute of limitations on a General Business Law § 349 action runs not from the act of deception, but from the date when the plaintiff learns, or reasonably should learn, that he or she has been deceived. But that is not what Gaidon held; it held that the statute runs from the time when the plaintiff was injured (citation omitted). In Gaidon, the alleged deception related to the likelihood of a future event: the defendants had sold life insurance to the plaintiffs, using materials showing that, after a certain date, policy dividends would be sufficient to cover the premiums. What defendants failed to disclose was that their prediction was "wholly unrealistic" (citation omitted). In that situation, we explained, the plaintiffs were not injured, and the statute of limitations did not begin to run, until the "unrealistic expectations" that defendants had raised "were actually not met" (citation omitted). This case does not involve unrealistic predictions, but alleged omissions and representations about whether Verizon was entitled, without compensation, to place its box on plaintiffs' wall. Plaintiffs' injury was suffered when, relying on those omissions and representations, they refrained from demanding either payment or removal of the box. That occurred more than three years before suit was brought, and the General Business Law § 349 claim is time-barred.

© 2013 David Paul Horowitz, All Rights Reserved

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Slander Claim By Town Clerk Against Town & Town Justice, Alleging Justice Was Acting In Official Capacity When Statements Were Made, Governed By GML §50-i(1)(c) Coe v. Town of Conklin, 94 A.D.3d 1197, 942 N.Y.S.2d 255 (3d Dep’t 2012) While the libel claim against the Town had to be filed within a year and 90 days of the Town's publication of the allegedly defamatory statements (see General Municipal Law § 50-i [1] [c]), the time limit for the slander cause of action depends upon who is the real party in interest. If Ayres was acting solely on his own behalf, the Town would not be liable for his actions and the one-year statute of limitations would apply to the cause of action against him (see CPLR 215 [3]). If Ayres was acting within the scope of his employment with the Town, however, the Town may be liable for his conduct and would thus be the real party in interest; in those circumstances, General Municipal Law § 50-i would apply (citation and footnote omitted). As plaintiff has not alleged that Ayres was acting outside the scope of his employment and, indeed, plaintiff refers to him throughout the complaint by his official title, the Town is the real party in interest. Thus, plaintiff's slander cause of action was timely because the complaint was filed less than a year and 90 days after the statements were made. Continuous Representation Not Available To Toll Legal Malpractice Statute Of Limitations R. Brooks Assoc., Inc. v. Harter Secret & Emery, LLP, 91 A.D.3d 1330, 937 N.Y.S.2d 789 (4th Dep’t 2012) Here, although plaintiff submitted bills from defendant for legal work performed within three years of the commencement of the action, it failed to establish that the bills were for work on the matter that was the subject of the alleged malpractice. Indeed, the evidence submitted by defendant established that the last work that it performed for plaintiff with respect to the subject of the alleged malpractice occurred in January or February 2001, and plaintiff failed to submit evidence raising a triable issue of fact whether the work performed after that time was related to the alleged malpractice. We therefore conclude that the evidence submitted by plaintiff established no "more than simply an extended general relationship between the [parties]" (citation omitted). Such evidence is insufficient to raise a triable issue of fact whether "(1) plaintiff[ ] and defendant . . . were acutely aware of the need for further representation [ concerning the subject of the alleged malpractice,] i.e., they had a mutual understanding to that effect[ ], and (2) plaintiff[ was] under the impression that defendant . . . was actively addressing [its] legal needs" with respect to the subject of the alleged malpractice (citation omitted). Consequently, the doctrine of continuous representation does not apply, and Supreme Court erred in denying the motion (citations omitted).

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Statute Of Limitations In Declaratory Judgment Actions Dictated By The Nature Of The Claim, Defendant’s Status, And Type Of Relief Sought Gress v Brown, 20 N.Y.3d 957, 958 N.Y.S.2d 675 (2012) No statute of limitations is expressly specified in the CPLR for declaratory judgment actions. Therefore, a declaratory judgment action would seemingly be governed by the residual six-year statute of limitations contained in CPLR 213(1). But the Court of Appeals determined in Solnick v Whalen (49 N.Y.2d 224, 425 N.Y.S.2d 68 [1980]) that the statute of limitations for a declaratory judgment action must be ascertained by considering what alternative action or proceeding, if any, could have produced the relief the plaintiff seeks in the declaratory judgment action. Based on the gravamen of the claim, the relationship out of which it arose and the relief sought by the plaintiff, if the plaintiff could have commenced a different action or proceeding to which a specific statute of limitations applies, that specific limitation (not the residual period) applies (see NY Practice §§ 438, 566). Gress illustrates the Solnick principle; the plaintiffs’ declaratory judgment action challenged administrative action and should, therefore, have been brought in a CPLR article 78 proceeding, which had a four-month statute of limitations. CPLR 203(f) Relation-Back For Spouse’s Derivative Claim Giambrone v Kings Harbor Multicare Ctr., 104 AD3d 546, 961 NYS2d 157 (1st Dep’t 2013), lv granted 2013 WL 3883042 (1st Dept, July 30, 2013) Under CPLR 203(f)’s relation-back doctrine, a claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, provided the original pleading gives the defendant notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading. CPLR 203(f) therefore allows for the assertion of a claim that would otherwise be time-barred. In Giambrone, the First Department joins the Third Department in concluding that a spouse’s

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derivative claim can be asserted in an amended complaint through CPLR 203(f). The First Department reasoned that the derivative claim should relate back to the timely interposed underlying claim because the initial complaint provided notice to the defendant of the transactions and occurrences underpinning the derivative claim. NB: Now, the First and Third Departments will apply CPLR 203(f) to a derivative claim, while the Second and Fourth Departments will not (see Dowdall v General Motors Corp., 34 A.D.3d 1221, 823 N.Y.S.2d 723 [4th Dep’t 2006]; Peteroy v St. Vincent’s Medical Center of Richmond, 278 A.D.2d 295, 718 N.Y.S.2d 199 [2d Dep’t 2000]; Lucido v Vitolo, 251 A.D.2d 383, 672 N.Y.S.2d 818 [2d Dept 1998]). CPLR 213 Breach Of Contract For Anticipatory Repudiation QK Healthcare, Inc. v InSource, Inc., 108 A.D.3d 56, 965 N.Y.S.2d 133 (2d Dep’t 2013) The statute of limitations for a claim of breach of contract relating to the sale of goods is four years (see UCC 2-275; CPLR 213[2]). But UCC 2-275 does not expressly state that the four-year statute of limitations period applies to claims for anticipatory repudiation of a goods contract. Therefore, does the six-year statute of limitations contained in CPLR 213(2), which governs contract actions generally, apply to an anticipatory repudiation claim relating to a goods contract? No. Since the contract relates to the sale of goods, the UCC statute of limitations controls over the general breach of contracts limitations period.

2. Medical Malpractice Question Of Fact Whether CPLR 214-a Continuous Treatment Makes Claims Timely Chestnut v. Bobb-McCoy, 94 A.D.3d 659, 943 N.Y.S.2d 461 (1st Dep’t 2012) After a lengthy analysis of the continuous treatment doctrine, the First Department examined the treatment preceding an ultimate diagnosis of lung cancer: © 2013 David Paul Horowitz, All Rights Reserved

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With respect to failure to diagnose cases, courts have held that a "failure to make the correct diagnosis as to the underlying condition while continuing to treat the symptoms does not mean, for purposes of continuity, that there has been no treatment" (citation omitted). Thus, a physician or hospital cannot escape liability under the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where it treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition (citations omitted). Accordingly, in this case, the applicability of the continuous treatment doctrine to the defendants' dealings with plaintiff's decedent prior to October 11, 2005, turns on whether or not defendants were consistently treating and/or monitoring the decedent for specific symptoms related to lung cancer. Our review of the record establishes that prior to May 2005, there was no continuous treatment for symptoms that are ultimately traced to lung cancer. Plaintiff's own medical expert opines that during this time period—May 2002 through May 2005—the only symptom related to lung cancer that the doctors discovered was high alkaline phosphate levels, which consistently showed up in the decedent's blood work analysis. Nonetheless, other than noting that the levels were elevated, there is nothing in the record to show that defendants ever discussed these results with the decedent, much less agreed to monitor the abnormal readings at her future examinations. Thus, given that the patient was not aware of the need for further treatment of this condition, the decedent was not faced with the dilemma that the continuous treatment doctrine is designed to prevent, i.e. interrupting the treatment or monitoring a condition in order to protect her rights (citation omitted). See, also, Piro v. Macura, 92 A.D.3d 658, 938 N.Y.S.2d 165 (2d Dep’t 2012)(Question of fact as to continuous treatment, consultation with another physician does not preclude application of the rule.). Continuous Treatment May Be Imputed To Physician Who Left Group Where Physician Left The Group More Than Two And One-Half Years Before Commencement Ozimek v. Staten Island Physicians Practice, --- A.D.3d ---, 955 N.Y.S.2d 650 (2d Dep’t 2012) Defendant radiologist left the employment of the radiology group more than two and one half years prior to the commencement of the action, and the Second Department held the trial court erred in dismissing complaint against the radiologist: On January 11, 2010, the plaintiffs commenced this action against Kulkarni, among others, alleging that Kulkarni was negligent in failing to appreciate the © 2013 David Paul Horowitz, All Rights Reserved

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serious nature of the developing mass in the injured plaintiff's right breast after the mammogram of March 10, 2007, and failing to timely recommend that the injured plaintiff go to a surgeon to biopsy the mass in the right breast after the mammogram of March 10, 2007. The Supreme Court granted Kulkarni's motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred, and the plaintiffs appeal. Kulkarni established his prima facie entitlement to judgment as a matter of law by demonstrating that the action was commenced more than two years and six months after the alleged acts and omissions which constituted the malpractice cause of action insofar as asserted against him (citations omitted). However, in opposition, the plaintiffs raised a triable issue of fact as to whether the injured plaintiff was undergoing a continuous course of treatment with respect to the nodules in her breasts at least through July 27, 2007, which is less than two years and six months prior to the commencement of this action (citations omitted). Although Kulkarni presented evidence that he left the employ of SIPP on July 6, 2007, and did not personally treat the injured plaintiff after that date, the " continuous treatment doctrine may be applied to a physician who has left a medical group, by imputing to him or her the continued treatment provided by subsequently-treating physicians in that group'" (citations omitted). Accordingly, the Supreme Court should have denied Kulkarni's motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred. No Continuous Treatment Toll For Medical Malpractice Claim Venditti v. St. Catherine Of Siena Medical Center, 98 A.D.3d 1035, 950 N.Y.S.2d 759 (2d Dep’t 2012) Plaintiff commenced action for medical malpractice and wrongful death against, inter alia, family practitioner and his professional corporation. The trial court granted defendant’s motion to dismiss, on statute of limitations grounds, so much of complaint asserted against practitioner and corporation as was based upon acts of alleged malpractice committed prior to date that was two and one-half years before action was commenced. The Second Department held that plaintiff’s claims to recover damages for wrongful death that were premised on acts of alleged malpractice occurring within two and one-half years of patient's death were timely, but further held that the continuous treatment doctrine did not toll statute of limitations on medical malpractice claim.

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Catheter Left In Body Not A Fixation Device Nor A Foreign Object Walton v. Strong Memorial Hosp., 37 Misc.3d 539, 950 N.Y.S.2d 556 (Supreme Court Erie Co. 2012) (Curran, J.) The court first addressed the issue of whether the catheter was a fixation device, and after examining precedent concluded: The catheter here does not fit the concept of a "fixation device" under any commonly understood meaning or technical sense. It served no fixative or fixation purpose. Its nature is not one which closes or fixates anything within a patient's body. The affidavit from plaintiff's expert further confirms the futility of attempting to characterize this catheter as a "fixation device" (citation and parenthetical omitted). In this Court's view, the credibility of the judiciary should not be sacrificed by referring to an object as something which it is clearly not. To do so is to "enter the forbidden realm of judicial legislating" (citation omitted). The court next discussed whether the catheter was a foreign object, noting its strong disagreement with existing precedent: As with the term "fixation device," the Legislature did not define the term "foreign object." In turning to the technical or most commonly understood definition of "foreign object," the Court could simply rely on the phraseology used by the medical personnel at the Vanderbilt University Medical Center, all of whom referred to this catheter as a "foreign body." This is confirmed by the interpretation attributed to the phrase "foreign object" by the plaintiff's expert. This view also is consistent with another state's construction of similar facts (citation omitted). Still, this Court is obligated to follow the precedent established by the Court of Appeals. The first question is whether the catheter was negligently left in the plaintiff's body. As of May 30, 1986, the answer must be in the affirmative. The next question is, as of May 30, 1986, did the catheter serve any continuing medical purpose. The answer to that is in the negative. However, based on LaBarbera, the "first instance" of the "continuing treatment modality" wherein the catheter was left in the plaintiff's body was on May 27, 1986. According to LaBarbera, the catheter is thereafter ineligible for consideration as a "foreign object." Therefore, within the confines of the decision in LaBarbera, this Court is compelled to conclude that the catheter here is not a "foreign object" because, in the first instance, it was left in the plaintiff's body deliberately with a continuing medical purpose. This Court is concerned whether this is the proper legal conclusion. This statement has nothing to do with the concerns expressed in Rockefeller and © 2013 David Paul Horowitz, All Rights Reserved

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LaBarbera about a harsh result for the plaintiff. Rather, the concern is whether this is a proper legal construction of the statute. In reading into the definition of the term "foreign object" the concept that it can only pertain to a procedure in the "first instance" of "a continuing treatment modality," the Court of Appeals has defined the term "foreign object" without any legislative guidance or any reference to a technical or commonly understood meaning of the term. The court instead appears to speculate as to what the Legislature intended and it did so with very scant evidence of legislative intent. Restricting the "foreign object" discovery rule to a single procedure or the first of a "continuing treatment modality" changes the fundamental concept of a "foreign object" without any clear legislative guidance. The courts should not interpret specific statutory terms based solely on a policy generally embodied in a statute and in so doing disregard their technical or commonly understood meaning. This Court agrees with the dissent by Justice Murphy in LaBarbera that there is "no intelligible distinction" among the foreign objects in Flanagan, LaBarbera and here. It is respectfully submitted that LaBarbera crafted a difference in the judicial definition of a "foreign object" when in fact there was no distinction. Nevertheless, the Court is required to follow its understanding of the holding in LaBarbera. For that reason, the motion to dismiss must be granted. If the Court did not feel so compelled to follow LaBarbera, it would deny the motion to dismiss only with respect to injuries claimed which are causally related to leaving the catheter in the plaintiff's body on May 30, 1986. The motion to dismiss would be granted as to the allegations in the bill of particulars pertaining to the insertion of the catheter as well as the failure to diagnose and properly remedy the situation of having left the catheter behind in plaintiff's body. The record is unclear as to which defendants would be entitled to dismissal on those grounds.

3. Tolling Provisions No Equitable Estoppel Barring Statute Of Limitations Defense In Claim For Deception Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 944 N.Y.S.2d 732 (2012) The Court of Appeals reversed the Second Department’s determination that defendant was equitably estopped from raising the statute of limitations defense: The Appellate Division, relying on General Stencils v. Chiappa (citations omitted), held that Verizon was estopped from raising a statute of limitations defense because (assuming the complaint's allegations to be true) Verizon concealed its wrongdoing from plaintiffs and so prevented them from bringing a © 2013 David Paul Horowitz, All Rights Reserved

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timely lawsuit. But General Stencils and Simcuski are not in point. In these cases, the complaints alleged both the tort that was the basis of the action and later acts of deception by which the defendants concealed their wrongdoing: In General Stencils, the defendant misappropriated the plaintiff's funds, and then used her position as the plaintiff's bookkeeper to cover up what she had done (citation omitted); in Simcuski, the defendant doctor committed malpractice and then falsely told the plaintiff that her resulting physical problems "were transient and … would disappear" (citation omitted). By contrast, in cases where the alleged concealment consisted of nothing but defendants' failure to disclose the wrongs they had committed, we have held that the defendants were not estopped from pleading a statute of limitations defense (citations and parentheticals omitted). Plaintiffs here have not alleged an act of deception, separate from the ones for which they sue, on which an equitable estoppel could be based. CPLR 205(a)’s Revival Exception For Cases Dismissed For Failure To Prosecute Has No Application While Statute Of Limitations Still Open Kim v. Cruz, 94 A.D.3d 820, 941 N.Y.S.2d 869 (2d Dep’t 2012) Plaintiff’s prior action in federal court was dismissed, and prior to the expiration of the SOL, plaintiff recommenced in state court, whereupon defendant moved to dismiss: CPLR 205 (a) is a tolling provision, which "serves the salutary purpose of preventing a Statute of Limitations from barring recovery where the action, at first timely commenced, had been dismissed due to a technical defect which can be remedied in a new action" (citations omitted). Although the appellants are correct that the six-month extension provided by CPLR 205 (a) is not available to a plaintiff whose prior action was dismissed for neglect to prosecute, the provision has no application in this case, in which the statute of limitations has yet to expire (citation omitted). "Where, as here, the statutory time limit has not expired, due to a toll or otherwise, this section cannot be applied in such a way as to shorten the period otherwise available to the plaintiff" (citations omitted). Accordingly, the Supreme Court properly denied the appellants' motion to dismiss the complaint as time-barred. Lack Of Capacity Of Person Commencing Action Does Not Bar CPLR 205(a) Recommencement Brown v. Lutheran Med. Ctr., 35 Misc.3d 553, 939 N.Y.S.2d 817 (Supreme Court, Kings Cty. 2012) Plaintiff commenced the action on behalf of the spouse as “proposed guardian ad litem,” and defendants moved to dismiss the action, which the court granted, with prejudice. Thereafter, plaintiff commenced a new action as administrator of the estate of © 2013 David Paul Horowitz, All Rights Reserved

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the decedent, and for individual claims of the spouse, which defendants sought to have dismissed as being ineligible for recommencement under CPLR 205(a): Defendants' arguments are devoid of merit. CPLR 205 (a) "permits a plaintiff to commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after termination of a prior action, provided that the prior action was timely commenced and was not terminated, inter alia, by a final judgment upon the merits" (citation omitted). The fundamental purpose of the statute is served when the defendant is given timely notice of the cause of action when asserted by or on behalf of the injured party (citation omitted). Thus, an "error" relating to the identity of the named plaintiff in the first action does not bar recommencement of the action pursuant to CPLR 205(a) (citation omitted). This is true even where the plaintiff who commences a lawsuit under § 205(a) is a completely different entity than that who commenced the initial lawsuit which was dismissed for lack of legal capacity, as long as the real party in interest is unchanged (citation omitted). In addition to failing to demonstrate, as they must, that the first lawsuit was dismissed on the merits, defendants' challenge based upon lack of jurisdiction is unavailing. It is true that when an action is dismissed for lack of personal jurisdiction based on defective service, the original action was never "commenced" for purposes of CPLR 205(a), and the six-month extension is therefore unavailable (citation omitted). However, contrary to defendants' contentions, "a party's lack of standing does not constitute a jurisdictional defect" (citation and parenthetical omitted). Moreover, plaintiff's lack of capacity to pursue the claims prior to the issuance of the Letters of Administration is not a dismissal on the merits and does not bar relief under § 205(a), since the original action was timely commenced (citation omitted). Lastly, Lutheran's vague and unsupported argument that the statute of limitations defense should remain because, absent a toll, "at least some of the survivor action for conscious pain and suffering and at least some of the wrongful death claim are time-barred," is devoid of merit (citation omitted). Moreover, "[a]lthough the prior dismissal may operate as a direct estoppel' in the sense that a subsequent action between the same parties based upon identical allegations would be barred by traditional res judicata principles (citation omitted), the dismissal does not constitute a final judgment upon the merits' precluding application of CPLR 205 (subd. [a]) to a subsequently commenced action unless it actually represents a definitive adjudication of the factual or legal merits of the underlying claim" (citation omitted).

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Attempt To Use Relation Back Doctrine Unsuccessful Tinch-McNeil, 96 A.D.3d 1407, 946 N.Y.S.2d 356 (4th Dep’t 2012) The Fourth Department first denied leave to amend the complaint to add a new cause of action, and then denied leave to add a new defendant: Plaintiff further contends that she should have been allowed to add Richard J. Gallagher, defendant's executive director, as a defendant in the action. We reject that contention. Plaintiff does not dispute that the action against Gallagher is untimely, but instead contends that the claims against him relate back to the timely complaint filed against defendant in August 2003. The relation-back doctrine, which is codified in CPLR 203 (b), allows the addition of a party after the expiration of the statute of limitations under three conditions: (1) both claims arose out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and by reason of that relationship may be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits, and (3) the additional party knew or should have known that, but for a mistake by the plaintiff concerning the identity of the proper parties, the action would have been brought against the additional party as well (citation omitted). Here, plaintiff and her attorneys knew from the time of her termination that Gallagher was the individual who made the decision to terminate her, and plaintiff offers no reason for failing to name Gallagher as a defendant in the complaint. Thus, the third prong of the relationback doctrine is not satisfied because it cannot be said that, "but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against [Gallagher] as well" (citations omitted). CPLR 208 Insanity Toll Thompson v. MTA, NYLJ, 3/20/12 (Supreme Court, Richmond Cty. 2013) (McMahon, J.) Plaintiff sustained serious injuries as a result of accident, undergoing as a result 15 surgical procedures including bilateral leg amputation. His treating physician opined that as a result of his extreme pain, high agitation, and severe history of depression with suicidal ideation, plaintiff was administered sedative psychiatric medications and medications which caused delirium and amnesia. Supreme Court held that with his conditions P was “under a disability” due to “insanity.”

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4. United In Interest Where Permission Not Sought To Commence Action Against A Representative Of An Incapacitated Person, Trial Court Providently Denied Leave Nunc Pro Tunc Wright v. Richards, 94 A.D.3d 874, 942 N.Y.S.2d 153 (2d Dep’t 2012) Once a guardian is appointed for an incapacitated person, litigation against the incapacitated person and against the guardian as representative of the incapacitated person should not proceed without the permission of the court which appointed the guardian (citations omitted). Here, the plaintiff did not request, and was not granted, permission to commence this action against the defendants. While leave to sue may be granted nunc pro tunc (citations omitted), the Supreme Court did not improvidently exercise its discretion in denying the plaintiff permission to sue nunc pro tunc. In any event, the complaint failed to state a cause of action (citations omitted). Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, for summary judgment on the complaint, and properly granted that branch of the defendants' cross motion which was pursuant to CPLR 3211 to dismiss the complaint.

b. Jurisdiction Cases 1. Personal Jurisdiction A. No Waiver Of Defense Trial Court Erred In Finding Waiver Of Defense Of Lack Of Personal Jurisdiction In Moving For Summary Judgment As Defense Was Previously Raised Gliklad v. Cherney, 97 A.D.3d 401, 948 N.Y.S.2d 48 (1st Dep’t 2012) The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v. Giordano (citation omitted) is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211 (a) (7).

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B. Jurisdictional Disclosure Ordered Jurisdictional Disclosure Ordered Deer Consumer Prods. v. Little, 35 Misc.3d 374, 938 N.Y.S.2d 767 (Supreme Court New York Cty. 2012) The evidence in this case is insufficient for the court to determine, at this time, whether the Court can exercise jurisdiction over Little pursuant to CPLR 301 based on his domicile. Little's personal website, www.alfredlittle.com, his LinkedIn profile, and the reports published by Little on the SAL's and other websites, all state in the "About" [the author] section, that "Little now resides in New York and Shanghai" (exhibits 1-4, to Affirmation of Robert Knuts). However, Little denies this jurisdictional fact, asserting that he has not resided in New York for last 12 months. At the same time, Little raises a defense of truth to the defamatory reports he is being sued on, but denies the truth of the statements in the "About" section. Due to such conflicting evidence, whether personal jurisdiction over Little exists pursuant to CPLR 301, cannot be determined on this motion. Moreover, a holding at this stage that personal jurisdiction is lacking would be premature in light of Deer's showing that facts essential to justify its opposition to this motion exist but cannot be stated at this time (citation and footnote 7 omitted). It is undisputed that Little's identity is unknown to Deer and that the essence of his alleged New York residency, i.e., his personal contacts with the forum, are within the exclusive control of Little (citation omitted). Thus, the facts essential for the court's proper determination of the jurisdictional basis should be determined by discovery (citations omitted). Under the circumstances, Deer is entitled to disclosure on the issue of personal jurisdiction (citation omitted), and the portion of Little's motion to dismiss for lack of jurisdiction under CPLR §301 is denied, without prejudice to renew upon completion of discovery, as outlined below.

C. CPLR 301 - Doing Business New York Not-For-Profit Independent Of Defendant Not Basis For Jurisdiction Farahmand v. Dalhousie Univ., 96 A.D.3d 618, 947 N.Y.S.2d 459 (1st Dep’t 2012) The court properly dismissed plaintiff's complaint for lack of personal jurisdiction over defendant, a publicly funded university that was incorporated in Nova Scotia, Canada. Contrary to plaintiff's contention, the evidence does not show that defendant engages in a "continuous and systematic course of 'doing business' " in New York through the activities of Dalhousie University Foundation Inc., a notfor-profit charitable organization that was incorporated in New York and has its © 2013 David Paul Horowitz, All Rights Reserved

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principal office in Manhattan (citation omitted). Although it is undisputed that the Foundation is a vehicle through which tax-deductible donations can be made to defendant by United States residents, the evidence does not support plaintiff's contention that defendant oversaw the Foundation's incorporation or controls the Foundation's activities. The evidence demonstrates that the Foundation was incorporated separately, is independently governed by New York residents on a volunteer basis, and functions independently of defendant. The court went on to state that in the event personal jurisdiction existed, dismissal would be warranted on forum non conveniens grounds. Sufficient Activities In New York For Transacting Business People [By Eric Schneiderman] v. Frisco Marketing, 93 A.D.3d 1352, 941 N.Y.S.2d 823 (4th Dep’t 2012) Here, we conclude that plaintiff "demonstrate[d] that facts may exist to exercise personal jurisdiction over the [individual] defendant[s]" (citation omitted). In opposition to the motions, plaintiff submitted documents establishing that the individual defendants were three siblings who controlled the businesses at issue. They signed the leases for the stores where the allegedly fraudulent sales took place, they were officers of the corporations that made those sales, and they were also officers of the corporations that financed those sales at deceptive and usurious rates. Furthermore, the complaint alleges that the stores did not make any legitimate sales, but rather the sole purpose of the stores was to engage in deceptive, usurious and fraudulent sales to members of the armed services. Considering all of the evidence and accepting the allegations in the complaint as true, as we must on a motion to dismiss (citation omitted), we conclude that "CPLR 302 (a) (1) jurisdiction is proper 'even though the [individual] defendant[s] never enter[ed] New York, [inasmuch as their] activities here were purposeful and there is a substantial relationship between the transaction[s] and the claim[s] asserted' " (citations omitted). In addition, [s]o long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction even if not 'present' in that State" (citation omitted). Based upon the aforementioned contacts that the individual defendants had with New York, we agree with plaintiff that due process is not offended by subjecting the individual defendants to the jurisdiction of the New York courts.

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Contracting To Provide Insurance In New York Sufficient For Long Arm Jurisdiction Constantine v. Stella Maris Ins. Co., 97 A.D.3d 1129, 948 N.Y.S.2d 802 (4th Dep’t 2012) After determining that plaintiff failed to establish prima facie that defendant transacts business in New York or that jurisdiction existed over defendant as a “mere department” or agent, the Fourth Department held that defendant contracted to provide services in New York and thus long-arm jurisdiction existed: Although, by its nature, a single-parent captive insurance company insures only its parent and, indeed, CHE is named as the insured in the policy, here, the policy itself states that the "persons insured" are the covered persons, i.e., CHE and its named affiliates, which include Catholic Health System, the sole member of Sisters Hospital, as well as the employees and contract physicians of the covered persons (citation omitted). Further, plaintiff provided the deposition testimony of CHE's vice-president who also serves as SMI's president and CEO, who testified that the list of physicians who contract with Sisters Hospital is provided to SMI's broker and actuary, and that SMI issues a certificate of insurance to him for CHE and Catholic Health System. We therefore conclude that plaintiff made a prima facie showing that SMI contracted with CHE to insure professional liability risks in New York, and thus that it is subject to the exercise of long-arm jurisdiction (citation omitted). We further conclude that "the exercise of jurisdiction comports with due process" (citations omitted), i.e., that SMI has the requisite minimum contacts with New York (citation omitted), and that the "prospect of defending [this action] . . . comport[s] with traditional notions of fair play and substantial justice" (citation omitted). Although SMI itself has no direct contacts with New York, we conclude that, based on its policy language that the contract physicians of Sisters Hospital, a "covered person," are "insured," the minimum contacts requirement has been met (citation omitted). We further conclude that permitting the action to proceed in New York comports with notions of fair play and substantial justice inasmuch as the remaining defendants, as well as plaintiff, either are residents of New York or are authorized to do business in New York, and the alleged basis for liability occurred in New York (citation omitted). Furthermore, we note that, in connection with a declaratory judgment action that SMI commenced against plaintiff in Federal District Court in Pennsylvania, SMI requested as alternative relief that the matter be transferred to Federal District Court in New York.

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D. CPLR §302 - Long-Arm Court Of Appeals Explains New York’s Narrow Construction Of “Transacting Business” In The Defamation Context SPCA of Upstate New York, Inc. v. American Working Collie Assoc., 18 N.Y.3d 400, 963 N.E.2d 1226940 N.Y.S.2d 525 (2012) After plaintiff, SPCA of Upstate New York, rescued a number of mistreated dogs, defendant, a Vermont resident who was president of a not-for-profit promoting and protecting collies, allegedly published defamatory statements on the groups website. The Court of Appeals detailed the defendant’s contacts with New York: On October 17, 2007, 23 mistreated dogs (collies and dachshunds) were rescued from a residence in Fort Ann, New York and placed with plaintiff SPCA in its Queensbury, New York facility. Soon thereafter, while in Vermont, defendant Levitt telephoned plaintiff Cloutier to offer the AWCA's assistance with the subject animals. Subsequently, the AWCA sent the SPCA a donation in the amount of $1,000. Levitt placed a second telephone call from Vermont to advise Cloutier that the AWCA had purchased collars and leashes for the dogs and to make arrangements to deliver those materials. Levitt visited the SPCA facility on November 7, 2007 for less than one hour, at which time Levitt delivered the leashes and collars and toured the facility. Levitt also wrote a personal check to the SPCA to cover the costs of certain veterinary care. Later that month, Levitt telephoned Cloutier from Vermont for the third and final time and, during that call, they discussed the appropriate care for one of the collies. In addition, on several weekends, volunteers who were affiliated with AWCA assisted in providing care for the dogs. Levitt again visited the SPCA facility on January 5, 2008, for about an hour and a half, to check on the collies. After Levitt's return to Vermont, she generated a series of writings addressing the condition of the collies and the treatment being provided by the SPCA. These writings were posted to the AWCA Web site periodically, beginning January 13, 2008. Plaintiff’s commenced the action based upon the writings, defendants moved to dismiss for lack of personal jurisdiction, and the trial court denied the motion, finding that “Levitt purposefully availed herself of this state's benefits and protections through

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her trips to New York and that there was a substantial relationship between her activities here and the allegedly defamatory statements.” The Appellate Division reversed, holding that “given New York's "narrow approach" to long-arm jurisdiction where defamation cases are concerned, defendants' contacts with the state were insufficient to support a finding of personal jurisdiction.” The Court of Appeals reviewed transacting business and the necessary “purposeful activities” required for jurisdiction under CPLR 302(a)(1): When determining whether the necessary substantial relationship exists between a defendant's purposeful activities and the transaction giving rise to the defamation cause of action, we have considered whether the relationship between the activities and the allegedly offending statement is too diluted (citations an parentheticals omitted). Here, defendants' activities in New York were quite limited. Levitt's three phone calls and two short visits—totaling less than three hours—in addition to the donation of cash and leashes, do not constitute purposeful activities related to the asserted cause of action that would justify bringing her before the New York courts. Moreover, it is of importance that the statements were not written in or directed to New York. While they were posted on a medium that was accessible in this state, the statements were equally accessible in any other jurisdiction. Further, there is no substantial relationship between the allegedly defamatory statements and defendants' New York activities. Levitt did not visit New York in order to conduct research, gather information or otherwise generate material to publish on the group's Web site. Instead, defendants engaged in limited activity within the state in order to help provide financial and medical assistance for the dogs. The alleged mistreatment was observed during the course of those two brief visits but written about after Levitt returned to Vermont. The AWCA neither placed the dogs with plaintiffs in New York nor complained of its volunteers' treatment by plaintiffs, either one of which might well entail a sufficiently substantial relationship between the allegedly defamatory statements and defendants' New York activities as to warrant a finding of long-arm jurisdiction. The connection here is too tangential to support the exercise of personal jurisdiction over defendants. The Court cited recent Second Circuit authority on CPLR 302: As the Second Circuit has observed, New York courts construe 'transacts any business within the state' more narrowly in defamation cases than they do in the © 2013 David Paul Horowitz, All Rights Reserved

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context of other sorts of litigation" (citation omitted). Through CPLR 302, the Legislature has manifested its intention to treat the tort of defamation differently from other causes of action and we believe that, as a result, particular care must be taken to make certain that non-domiciliaries are not haled into court in a manner that potentially chills free speech without an appropriate showing that they purposefully transacted business here and that the proper nexus exists between the transaction and the defamatory statements at issue. Court Of Appeals Answers Questions Certified By Second Circuit; Holds Foreign Bank’s Maintenance & Wire Transfers On Behalf Of Foreign Client Constitutes Transaction Of Business & Plaintiff’s Claim Under, Inter Alia, Anti-Terrorism Act Arise From The Transaction Of Business Under CPLR 302(a)(1) Licci v. Lebanese Can. Bank, SAL, 20 N.Y.3d 327, 984 N.E.2d 893, 960 N.Y.S.2d 695 (2012) Plaintiffs, Israelis injured or killed in terrorist attacks in Israel, brought suit under, inter alia, the Anti-Terrorism Act, alleging that the wire transfers from correspondent bank in New York to defendant bank aided terrorist activity. The Second Circuit certified two questions to the Court of Appeals: Certified Question No. 1 (1) Does a foreign bank's maintenance of a correspondent bank account at a financial institution in New York and use of that account to effect "dozens" of wire transfers on behalf of a foreign client, constitute a "transact[ion]" of business in New York within the meaning of N.Y.C.P.L.R. § 302 (a) (1)? (673 F3d at 66)[.] *** The jurisdictional inquiry under CPLR 302 (a) (1) necessarily requires examination of the particular facts in each case. And although determining what facts constitute "purposeful availment" is an objective inquiry, it always requires a court to closely examine the defendant's contacts for their quality (citation omitted). Thus, in Amigo Foods we focused on the nature and extent of Aroostook's involvement in the deposit of funds intended to pay Parent in the correspondent account that Aroostook maintained at Irving in New York. As discovery revealed, Aroostook's purported use of the account in this transaction, the sole potential basis for personal jurisdiction, was essentially adventitious — i.e., it was not even Aroostook's doing.

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In the banking context, the requisite inquiry under CPLR 302 (a) (1)'s first prong may be complicated by the nature of inter-bank activity, especially given the widespread use of correspondent accounts nominally in New York to facilitate the flow of money worldwide, often for transactions that otherwise have no other connection to New York, or indeed the United States. As a result, determining in an individual case whether a foreign bank's maintenance and use of a correspondent account is purposeful or coincidental may often prove more difficult than was the case in Amigo Foods, once the facts there were established. Nonetheless, complaints alleging a foreign bank's repeated use of a correspondent account in New York on behalf of a client — in effect, a "course of dealing" (citation omitted) — show purposeful availment of New York's dependable and transparent banking system, the dollar as a stable and fungible currency, and the predictable jurisdictional and commercial law of New York and the United States. Certified Question No. 2 (2) Do the plaintiffs' claims under the Anti-Terrorism Act, the A[lien] T[ort] S[tatute], or for negligence or breach of statutory duty in violation of Israeli law, "aris[e] from" LCB's transaction of business in New York within the meaning of N.Y. C.P.L.R. § 302(a)(1)? (citation omitted)[.] Accepting the complaint's allegations as true, LCB's use of its AmEx correspondent account to transfer money for Shahid provided money for Hizballah to carry out terrorist violence, including the 2006 rocket attacks. Application of the second prong of the jurisdictional inquiry varies according to the nature and elements of the particular causes of action pleaded; here, LCB's alleged breach of various statutory duties. As personal jurisdiction is fundamentally about a court's control over the person of the defendant, the inquiry logically focuses on the defendant's conduct. Again, the complaint alleges that LCB engaged in terrorist financing by using its correspondent account in New York to move the necessary dollars. Taken as true, LCB arguably thereby violated duties owed to plaintiffs under the various statutes asserted as a basis for subject matter jurisdiction. Furthermore, the alleged breaches occurred when LCB used the New York account. Again, whether or not plaintiffs can prove these allegations at trial, including showing links between Shahid and Hizballah, and whether or not these allegations state a claim under the various statutes, the pleadings establish the "articulable nexus" or "substantial relationship" necessary for purposes of personal jurisdiction. While it may be that LCB could have routed the dollar transactions on behalf of Shahid elsewhere, the fact that LCB used a New York account "dozens" of times indicates desirability and a lack of coincidence. Presumably, using the AmEx account was cheaper and easier for LCB than other options, and whatever financial and other benefits LCB enjoyed as a result allowed the bank to retain Shahid as a customer and to support its allegedly terrorist activities and programs.

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In sum, repeated use of the correspondent account shows not only transaction of business, but an articulable nexus or substantial relationship between the transaction and the alleged breaches of statutory duties. LCB did not route a transfer for a terrorist group once or twice by mistake. Rather, plaintiffs allege that LCB deliberately used a New York account again and again to effect its support of Shahid and allegedly shared terrorist goals. Not all elements of the causes of action pleaded are related to LCB's use of the correspondent account. And the specific harms suffered by plaintiffs flowed not from LCB's alleged support of a terrorist organization, but rather from rockets. Yet CPLR 302 (a) (1) does not require that every element of the cause of action pleaded must be related to the New York contacts; rather, where at least one element arises from the New York contacts, the relationship between the business transaction and the claim asserted supports specific jurisdiction under the statute. Accordingly, the certified questions should be answered in the affirmative. In Paterno v Laser Spine Inst., ___AD3d___, ___NYS2d___, 2013 NY Slip Op 06669 (2d Dep’t 2013), the Second Department, citing Licci, reviewed the use of CPLR 302(a)(1) as a means of securing personal jurisdiction over a nondomiciliary based on the nondomiciliary’s maintenance of a website and use of e-mail to communicate with a N.Y. domiciliary. Sufficient New York Contacts For CPLR 302(a)(1) & (a)(3) Jurisdiction Urfirer v. S.B. Builders, LLC, 95 A.D.3d 1616, 946 N.Y.S.2d 266 (3d Dep’t 2012) Connecticut plaintiff contracted with Connecticut defendant to build a home in New York: In addition to the foregoing, the parties contemplated that various subcontractors would be employed on the project and, to that end, the contract documents established a prescribed method of payment for those entities. Specifically, a subcontractor would submit its invoice to SB, which, in turn, would forward an application for payment to the project architect. Pursuant to the terms of the contract, this application represented a payment that SB had made (or intended to make) to the subcontractor, less a minor retainage. Assuming the application was approved, the architect would certify—and advise plaintiffs of—the sum due, and plaintiffs would then tender payment to SB. As the project neared its scheduled completion date, plaintiffs discovered that certain subcontractors had stopped working—purportedly because they had not © 2013 David Paul Horowitz, All Rights Reserved

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been paid by SB. When attempts to resolve these payment disputes proved unsuccessful, plaintiffs commenced this action alleging, among other things, breach of contract against SB and fraud against SB, Carlson and Ridgeway. Following joinder of issue, plaintiffs moved to, among other things, amend their complaint, and defendants cross-moved to dismiss the fraud cause of action. Supreme Court granted plaintiffs' motion to amend their complaint, as well as so much of defendants' cross motion as sought dismissal of the fraud claim against Carlson and Ridgeway based upon lack of personal jurisdiction. This appeal by plaintiffs ensued. *** A New York court may exercise personal jurisdiction over a nondomiciliary who, either in person or through his or her agent, "transacts any business within the state or contracts anywhere to supply goods or services in the state" (citation omitted). Notably, CPLR 302 (a) (1) is a "single act statute" and, therefore, "proof of one transaction in New York is sufficient to invoke jurisdiction . . . so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (citations omitted). As the parties seeking to assert personal jurisdiction, plaintiffs bear the burden of proof in this regard (citations omitted). "Such burden, however, does not entail making a prima facie showing of personal jurisdiction; rather, plaintiff[s] need only demonstrate that [they] made a 'sufficient start' to warrant further discovery" (citations omitted). In our view, plaintiffs met that burden here. Plaintiffs allege that Carlson and Ridgeway personally executed or caused to be submitted allegedly fraudulent payment applications representing sums owed or paid to various New York subcontractors that, in reality, either were not due, had not been paid or were due in a sum less than the amount portrayed on the payment applications. Specifically, plaintiffs allege that Carlson and/or Ridgeway submitted numerous original invoices for payment, obtained the architect's certification thereof, secured the appropriate payments from plaintiffs and then either failed to remit the certified sums to the New York subcontractors or thereafter requested that such subcontractors withdraw their original invoices and submit revised—and lower priced—invoices in their place. In addition to the foregoing transactions, plaintiffs allege that Carlson and Ridgeway hired and supervised more than one dozen subcontractors in New York, extensively communicated with the subcontractors via telephone calls and e-mails, traveled to New York to supervise the project and derived substantial financial benefit from their work thereon. Such allegations, in our view, are sufficient to survive defendants' motion to dismiss the amended complaint against Carlson and Ridgeway for lack of personal jurisdiction under CPLR 302 (a) (1) (citations omitted). We reach a similar conclusion as to plaintiffs' alternate basis for jurisdiction under CPLR 302 (a) (3). A New York court may exercise personal jurisdiction over a © 2013 David Paul Horowitz, All Rights Reserved

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nondomiciliary who "commits a tortious act without the state causing injury to person or property within the state" (citation omitted). "Where, as here, commercial nonphysical losses are alleged, the situs of the injury is not where the losses are sustained, but where the critical events associated with the dispute took place" (citations omitted). In our view, even assuming that all of Carlson's and Ridgeway's purported misrepresentations occurred in Connecticut, plaintiffs nonetheless have alleged sufficient facts as to the construction delays occasioned by defendants' asserted failure to pay the New York subcontractors to survive defendants' motion to dismiss pursuant to CPLR 3211 (a) (8). Accordingly, Supreme Court erred in dismissing the amended complaint against Carlson and Ridgeway.

2. Subject Matter Jurisdiction New York Court Has Subject Matter Jurisdiction To Dissolve Vermont Civil Union Dickerson v. Thompson, 88 A.D.3d 121, 928 N.Y.S.2d 97 (3d Dep’t 2011) [T]he NY Constitution vests Supreme Court with "general original jurisdiction in law and equity" (citation omitted). "'The power of equity is as broad as equity and justice require'" (citations omitted). Indeed, "[t]he essence of equity jurisdiction has been the power … to [mold] each decree to the necessities of the particular case" (citation omitted). Thus, once a court of equity has obtained jurisdiction over the subject matter of the action, as Supreme Court had here, it has the power to dispose of all matters at issue and to grant complete relief in accordance with the equities of the case (citation omitted). In other words, even in the absence of any direct grant of legislative power, Supreme Court has the "inherent authority … to fashion whatever remedies are required for the resolution of justiciable disputes and the protection of the rights of citizens," tempered only by our Constitution and statutes (citation omitted). The exercise of Supreme Court's equitable powers to grant a dissolution of the civil union was clearly warranted here. Plaintiff is in need of a judicial remedy to dissolve her legal relationship with defendant created by the laws of Vermont. 2 Residency requirements prevent her from obtaining a dissolution of the civil union in Vermont, and the provisions of Domestic Relations Law § 170, which provide for divorce and dissolution of a marriage, are not applicable to this action since the parties did not enter into a marriage in Vermont. Thus, absent Supreme Court's invocation of its equitable power to dissolve the civil union, there would be no court competent to provide plaintiff the requested relief and she would therefore be left without a remedy. A court of equity "withholds its remedies if the result would be unjust, but freely grants them to prevent injustice when the other courts are helpless" (citations omitted).

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Transfer Up Denied Sealey v. Morris, 99 A.D.3d 1008, 953 N.Y.S.2d 252 (2d Dep’t 2012) The Supreme Court providently exercised its discretion in denying the petition to remove the petitioner's underlying personal injury action from the Civil Court, Queens County, to the Supreme Court, Queens County (citation omitted), and for leave to amend the complaint to increase the ad damnum clause (citation omitted). To demonstrate her entitlement to this relief, the petitioner was required, inter alia, to submit a physician's affirmation (1) showing a causal connection between her condition and the accident, and (2) specifying the claimed change in her condition, any injuries that had not been previously considered, or the extent to which the condition had worsened (citations omitted). The physician's affirmation submitted by the petitioner in support of her petition failed, inter alia, to establish that the increased injuries to her lower back which required surgery were causally related to the subject motor vehicle accident, as it failed to account for the fact that the petitioner had claimed to have injured her lower back in accidents that had occurred both prior and subsequent to the subject motor vehicle accident (citations omitted). Claim For Money Damages Against State Belongs In Court Of Claims; Subject Matter Jurisdiction Not Waivable Guideone Specialty, Mut. Ins. Co. v. State Ins. Fund, 94 A.D.3d 700, 941 N.Y.S.2d 506 (2d Dep’t 2012) A claim for money damages against the State must be litigated in the Court of Claims (see Court of Claims Act § 9 [2]). "The State Insurance Fund is a state agency, and, consequently, claims against it for money damages must be litigated in the Court of Claims, rather than in the Supreme Court" (citation omitted). Although denominated as an action for a declaratory judgment, the complaint in this case shows that this is essentially an action to recover money damages against a state agency, for which the proper forum is the Court of Claims (citation omitted). Although the plaintiffs correctly note that the appellant raised this issue for the first time in its reply papers (citation omitted). See, also, Green v. State, 90 A.D.3d 1557, 953 N.Y.S.2d 779 (4th Dep’t 2011)(Subject matter jurisdiction not waivable). Second Department Reverses Trial Court & Holds Family Court Jurisdiction Had Jurisdiction Over Petition Of Live-In Boyfriend Of Mother Also In “Intimate Relationship” With The Child Commencing A Family Offense Proceeding In the matter of Jose G. v. Angel V., 99 A.D.3d 243, 951 N.Y.S.2d 195 (2d Dep’t 2012) The Second Department reviewed the jurisdiction of Family Court, including the © 2013 David Paul Horowitz, All Rights Reserved

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2008 legislative expansion of the definition of “members of the same family or household:” [T]o include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” (citation and parenthetical omitted). The Legislature expressly excluded from the definition of “intimate relationship” a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” (citation omitted). however, beyond Those delineated exclusions, the Legislature left it to the courts to determine, on a case-by-case basis, what qualifies as an “intimate relationship” within the meaning of Family Court Act § 812(1)(e). Additionally, the Legislature suggested certain factors which the courts may consider, including, but not limited to, “ the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” (citation omitted). Following the 2008 amendment, courts have found that persons who have dated or were engaged in a sexual relationship are covered within the meaning of “intimate relationship” citations and parentheticals omitted). The Second Department determined that the record supported a finding that the mother and boyfriend were in an intimate relationship, but that the relationship beteen the mother and boyfriend was not dispositive: “In this regard, case law suggests that in order for an “intimate relationship” to exist within the meaning of Family Court Act § 812, the relationship should be direct, not one based upon a connection with a third party (citations and parentheticals omitted).” The court found that the child and boyfriend were in an intimate relationship under the statute, and that Family Court had jurisdiction over the proceeding: Here, the relationship between the child and the boyfriend is direct and is akin to the relationship between a stepparent and a stepchild. The following factors, which are alleged in this case, support the existence of this “quasi-stepparentstepchild” relationship: the boyfriend has dated the child's mother for more than three years, he resides with the child's mother, and the child spends substantial time visiting with the mother in the home the mother shares with the boyfriend. The allegation that the boyfriend exercises parental authority over the child while she visits with the mother is particularly significant. Moreover, the interaction © 2013 David Paul Horowitz, All Rights Reserved

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between the child and the boyfriend reportedly occurs on a regular basis (three weekends per month, from Friday afternoon until Monday morning) and is likely to continue in the future. Hence, the alleged relationship between the child and the boyfriend is one of the “unique or special” relationships that “subject persons to greater vulnerability and potential abuse because of their nature” (citations and parentheticals omitted). Our holding is consistent with the goals of a family offense proceeding, which are to “stop the violence, end the family disruption and obtain protection” (citation omitted). The court explained the procedure to be followed: We note that the determination as to whether persons are or have been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e) is a fact-specific determination which may require a hearing. However, considering the allegations here, the Family Court possessed sufficient relevant information to allow it to make an informed determination on that issue (citation omitted). Consequently, the Family Court incorrectly determined that the child was not in an intimate relationship with the live-in boyfriend of her mother. Accordingly, the Family Court erred in dismissing the proceeding on the ground that it lacked subject matter jurisdiction. Our determination should not be construed as suggesting any particular determination on the merits of the petition.

3. Forum Non Conveniens Sua Sponte Dismissal Of Main Party Action After Dismissal Of Third-Party Action On Motion Not Permitted; Dismissal Of Third-Party Action Reversed Mashregbank PSC v. Ahmed Hamad, 101 A.D.3d 1, 951 N.Y.S.2d 124 (1st Dep’t 2012) This decision is worth careful reading in its entirety for its detailed analysis of seminal case law on forum non conveniens. The First Department reversed the trial court’s sua sponte dismissal of the main party action: Furthermore, Al Sanea distorts the record of the proceeding below. Al Sanea asserts, and the dissent accepts the assertion, that the motion court invited submissions for dismissal of the entire case. This is simply not true. While the motion court expressed reservations concerning whether the entire case "belong[ed] here," the court only scheduled briefing for Al Sanea's motion to dismiss the third-party action. Mashreqbank did not participate in that initial briefing on Al Sanea's motion because, as Mashreqbank's counsel stated, "[N]o one ha[d] made a forum non [conveniens] motion against my client Mashreqbank. " Despite what Mashreqbank may have ultimately stated to the motion court at oral argument, when Mashreqbank finally briefed the conveniens question with regard to Al Sanea's motion, Mashreqbank argued against dismissal of the main action. The dissent's view, that because Mashreqbank © 2013 David Paul Horowitz, All Rights Reserved

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conceded that the UAE "would be an adequate forum" Mashreqbank necessarily advocated for a forum non conveniens dismissal of its own case, is similarly without support in the record. Of course, Mashreqbank, as plaintiff in the main action, could have moved the court to withdraw the action in its entirety. Mashreqbank, however, continued to argue that New York was the appropriate forum. The dissent's reliance on our decision Banco do Estado de Sao Paulo v. Mendes Jr. Intl., 249 A.D.2d 137, 139, 672 N.Y.S.2d 28, 29 (1st Dept. 1998), is also misplaced. In Banco do Estado do Sao Paulo, we acknowledged that the motion was technically denominated as one for summary judgment. However, both plaintiff and defendants in that motion fully briefed the forum non conveniens issue as a "clearly articulated motif" of the motion. There simply is no indication that we raised the question sua sponte. Indeed, we explicitly recognized in Banco do Estado do Sao Paulo that our holding in Todtman, Young would have precluded such sua sponte application of forum non conveniens. After Holding Dismissal Proper For Lack Of Personal Jurisdiction, Court Holds Dismissal Also Warranted On Forum Non Conveniens Grounds Farahmand v. Dalhousie University, 96 A.D.3d 618, 947 N.Y.S.2d 459 (1st Dep’t 2012) The court properly found that, even if a basis for personal jurisdiction existed, dismissal would be warranted on the alternative ground of forum non conveniens. Plaintiff's tort and breach of contract claims lack a substantial nexus with New York, since the incidents giving rise to the claims occurred in Nova Scotia, Nova Scotia law governs the claims, and the documentary evidence and witnesses are located in Nova Scotia (citations omitted). To the extent plaintiff contends that Nova Scotia is not a viable alternative forum because she cannot afford to retain counsel there, while her New York counsel is willing to represent her on a pro bono basis, the argument is unavailing. A claim of financial hardship is not relevant to a determination of the availability of an alternate forum; it is a factor to be considered in determining whether the alternate forum that has been identified is convenient (citation omitted). Further, plaintiff does not dispute defendant's contention that Nova Scotia law permits attorneys to represent plaintiffs on a contingent fee basis (citations omitted). To Quote John McLaughlin, “Bye, Bye!” Peters v. Peters, 101 A.D.3d 403, 955 N.Y.S.2d 315 (1st Dep’t 2012) The motion court properly exercised its discretion in finding that the fact of plaintiff's residence in New York is outweighed by the remaining factors under consideration on UBS AG's motion to dismiss on the ground of forum non conveniens (citation omitted). The transaction out of which the cause of action arose occurred in Switzerland, all the meetings described by plaintiff that © 2013 David Paul Horowitz, All Rights Reserved

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involved UBS AG personnel took place in that country, nearly all the nonparty witnesses are there, Swiss law would apply to the claims, and plaintiff may bring suit in Switzerland.

4. Forum Selection Trial Court Erred In Finding Waiver Of Defense Of Lack Of Personal Jurisdiction In Moving For Summary Judgment As Defense Was Previously Raised Gliklad v. Cherney, 97 A.D.3d 401, 948 N.Y.S.2d 48 (1st Dep’t 2012) The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v. Giordano (citation omitted) is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211 (a) (7). D in this action seeking to recover on a promissory note sought its dismissal on forum non conveniens grounds. Court held the motion was barred as the promissory note contained a clause selecting NY as the forum. Forum Selection Clause Enforceable Only As To Signatories To Agreement May v. US HIFU, LLC, 98 A.D.3d 1004, 951 N.Y.S.2d 163 (2d Dep’t 2012) The plaintiff alleges that he sustained personal injuries in April 2008 as a result of undergoing treatment for prostate cancer using a medical device called the Sonablate 500 (hereinafter the Sonablate), which administers high intensity, focused ultrasound. The treatment was rendered at a facility called Can-Am HIFU, which is located in Toronto, Ontario, Canada. The Sonablate is approved for use in Canada, but has not yet received approval in the United States. The plaintiff's treating physician for this procedure was Jack Barkin, who is a limited partner of Toronto IIIFU, L.P., which established the Can-Am HIFU treatment center in Toronto. HIFU Canada Corporation is a partner in Toronto HIFU, L.P., and a wholly owned subsidiary of USHIFU Canada Holdings, Inc. USHIFU Canada Holdings, Inc., is, in turn, a wholly owned subsidiary of the defendant US HIFU, LLC, and the defendant International HIFU, LLC, is a wholly owned subsidiary of US HIFU, LLC. The plaintiff allegedly learned of the Sonablate procedure through the websites of the defendants US HIFU, LLC, and International HIFU, LLC (hereinafter together the HIFU defendants), and thereafter exchanged paperwork and remitted payment to the defendant US HIFU, LLC, at its place of business in North Carolina prior to receiving the treatment. The defendants Focus Surgery, Inc. (hereinafter Focus Surgery), and Misonix, Inc. (hereinafter Misonix ), allegedly designed, manufactured, distributed, and/or © 2013 David Paul Horowitz, All Rights Reserved

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sold the Sonablate. The HIFU defendants, Focus Surgery, and Misonix separately moved to dismiss the complaint insofar as asserted against each of them pursuant to, inter alia, CPLR 3211(a)(1). The movants argued, inter alia, that the action should be dismissed because the plaintiff executed a forum selection agreement in April 2008 (hereinafter the Agreement) whereby he agreed, inter alia, that the courts of the Province of Ontario would have exclusive jurisdiction to hear any claim "whatsoever arising out of the treatment" rendered to him at Can-Am HIFU, and that any legal proceeding would be commenced only in the Province of Ontario. In opposition, the plaintiff argued that the Agreement could not be enforced by the defendants because they were not signatories thereto. He further argued that the Agreement was invalid because it was unreasonable, unjust, and constituted a contract of adhesion. The Supreme Court concluded that the Agreement was valid, but that it could only be enforced by the HIFU defendants. Accordingly, the Supreme Court granted that branch of the HIFU defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) insofar as asserted against them based on the forum selection clause. The Supreme Court correctly concluded that the Agreement was prima facie valid and enforceable, since the plaintiff did not demonstrate that it was " unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or . . . that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court'" (citations omitted). However, dismissal under CPLR 3211(a)(1) is warranted only where "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (citations omitted). As a general rule, "only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement" (citations omitted). "There are three sets of circumstances under which a nonparty may invoke a forum selection clause[:] . . . an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement . . . parties to a global transaction' who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement . . . [and] a nonparty that is closely related' to one of the signatories can enforce a forum selection clause" (citations omitted) In the case at bar, the defendants' separate motions, inter alia, seeking dismissal of the complaint pursuant to CPLR 3211(a)(1) are based upon a forum selection agreement which was not signed by any of them. Indeed, the Agreement was executed only by the plaintiff, although it also contains the signature of an employee of Can-Am HIFU who signed in a witness capacity. Under these circumstances, the defendants clearly were not in privity with the plaintiff under the Agreement. In addition, the defendants do not fall within any of the three exceptions to the privity requirement for enforcement of a forum selection clause. © 2013 David Paul Horowitz, All Rights Reserved

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In particular, we note that the Agreement was not signed by Barkin, the physician whom the Supreme Court found had a "sufficiently close" relationship with the HIFU defendants so as to permit them to enforce the Agreement (citation omitted). Accordingly, the defendants were not entitled to dismissal of the complaint pursuant to CPLR 3211(a)(1) based upon the forum selection clause. The Supreme Court providently exercised its discretion in denying those branches of the separate motions of Focus Surgery and Misonix which sought to dismiss the complaint insofar as asserted against each of them based upon forum non conveniens. The factors to be considered in adjudicating such a motion, including the residency of the parties and whether a New York court will be burdened by the litigation, were duly considered by the Supreme Court, and do not militate in favor of dismissing the complaint insofar as asserted against those defendants (citations omitted). Three Exceptions To Rule That Forum Selection Clauses Are Only Enforceable To Signatories Tate I. Lyle Ingredients Americas, Inc. v. Whitefox Tech., 98 A.D.3d 401, 949 N.Y.S.2d 375 (1st Dep’t 2012) The First Department explained the three circumstances when a nonsignatory may enforce a forum selection clause: There are three sets of circumstances where a nonsignatory can enforce a forum selection clause. First, a third-party beneficiary of the contract may enforce a forum selection clause. Second, parties to an integrated, global transaction, who are not signatories to a specific agreement within the transaction, may nonetheless benefit from a forum selection clause in one of the other agreements (citation omitted). Neither the first or second circumstance are at issue in this case. As a third circumstance, Freeford states that "a nonparty that is closely related' to one of the signatories can enforce a forum selection clause" (citation omitted, emphasis in original). The court found the circumstance applicable at bar: While there are many New York cases allowing a forum selection clause to be enforced by or against nonsignatory plaintiffs, Whitefox cites no case allowing enforcement against a nonsignatory defendant where that defendant is not an employee, successor or alter ego of the signatory. Nevertheless, the federal courts permit a forum selection clause to bind a nonsignatory defendant that has a sufficiently close relationship with the signatory and the dispute to which the forum selection clause applies (citations and parentheticals omitted). Delaware applies a similar test to evaluate whether a forum selection clause can be used to join a nonsignatory defendant into the action (citations and parentheticals © 2013 David Paul Horowitz, All Rights Reserved

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omitted). The rationale behind binding closely related entities to the forum selection clause is to "promote stable and dependable trade relations" (citation omitted). "[I]t would be inconsistent with that policy to allow the entities through which one of the parties chooses to act to escape the forum selection clause" (citation omitted). An important consideration in determining whether the nonsignatory is "closely related" to the signatory and the agreement from which the dispute arises is whether "the nonparty's enforcement of the forum selection clause is foreseeable by virtue of the relationship between the nonparty and the party sought to be bound" (citations omitted). Forum Selection Clause In Contract Of Adhesion Unenforceable Molino v. The Sagamore, 36 Misc.3d 267, 943 N.Y.S.2d 392 (Supreme Court Queens Co. 2012) (Elliot, J.) In an action to recover damages for injuries alleged to have been sustained as a result of a slip-and-fall accident at D’s hotel, Court held D was not entitled to an order enforcing the forum selection clause contained in the rental agreement P was presented with only after she paid in full and upon her arrival at the hotel to check in following a six-hour drive. It noted that contractual forum selection clause is prima facie valid and enforceable unless it is shown to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party could, for all practical purposes, be deprived of its day in court. Under the circumstances here, the rental agreement containing the clause was a contract of adhesion and it was unreasonable and unjust to enforce the clause and change the venue from Queens County to Warren County. Court emphasized P made a reservation to stay at D’s hotel and paid the full quoted price in advance as required. The E-mail confirmation of her reservation, which included the terms and conditions, did not contain, much less allude to, a forum selection clause. Forum Selection Clause On Website Visible Only By Clicking On Inaccessible Link Void Jerez v. JD Closeouts, LLC, 36 Misc. 3d 161, 943 N.Y.S.2d 392(District Court Nassau Cty. 2012) The court reviewed the parties’ assertions concerning the accessibility of the link stating the forum selection clause: Through a timely motion to dismiss, made pursuant to CPLR 3211(a), defendants seek dismissal of plaintiff's entire case, principally on the ground that "a valid and enforceable forum selection clause requires jurisdiction of any disputes in © 2013 David Paul Horowitz, All Rights Reserved

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Broward County, Florida." In support of the motion, defendants submit an affidavit from their principal owner, Joseph Beyhan. He asserts: The sale of all goods transacted on the JD Closeouts website is conditioned by the "Terms of Sale." The website contains the "Terms of Sale" on its "About Us" page. The "Terms of Sale" has a hyperlink that directs the viewer to the terms of all sales, including disclosures, return policy and legal policy. That page titled "Sale Terms" states that "[i]n the event that an irresolvable situation arises, any litigation will take place in Broward County, in the State of Florida. JD Closeout's legal policy is clear and unambiguous and available to anyone who views its website. The forum selection clause is extremely important for JD Closeouts, so that it is not made subject to lawsuits in every potential jurisdiction in the United States. Plaintiff opposes the motion, contending that the "forum selection" provision found on defendants' website "is not part of the contract between the parties." Plaintiff thus asserts that he has "never seen this language before, and ... never saw it" when he agreed to purchase tube socks from defendants. As his attorney further maintains, the language invoked by defendants is not a true "forum selection clause." "[I]t is simply language buried in the defendant's website that is very difficult to find." Defendants' reply includes a second affidavit from Joseph Beyhan. In his view, it would be "unconscionable" to make JD Closeouts subject to jurisdiction in "every state in every county in the country." The forum selection provision on the website "is an absolute necessity" to defendants' business. Since JD Closeouts "is not a huge company," it cannot afford to have its officers "spend time away" defending lawsuits outside of Broward County, Florida. As a "discount wholesaler," it depends upon the forum selection provision to ensure that legal disputes "are fought locally, which in turn keeps costs low." The court examined the relevant case law, including the decision of the United States Supreme Court in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 622 (1991), and then applied the facts in the case to that law: The facts in this case more closely approach the circumstances presented in Hoffman and Specht, where "submerged" website provisions were found © 2013 David Paul Horowitz, All Rights Reserved

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insufficient to bind the company's customers. Unlike the circumstances presented in the other cases discussed above, the existence of a forum selection clause was not reasonably communicated to plaintiff through a printed contract (citation omitted), a confirming letter agreement incorporating the provisions by reference (citation omitted), or a required "click-through" acceptance of hyperlinked terms and conditions (citations omitted). Rather, the terms were "buried" and "submerged" on a webpage that could only be found by clicking on an inconspicuous link on the company's "About Us" page. Without minimizing the importance of the provision to defendant's business, too little was done to ensure that the provision became part of the parties' contract. Especially in cases where the terms of an e-commerce transaction are negotiated, in the first instance, by e-mail, a seller must make an affirmative effort to "reasonably communicate" the essential terms of sale to the buyer. If it wishes to make those terms part of the bargain, it can easily do so by providing notice to the buyer that the terms can be found at a given website address. Defendants did not do so. Nor did they structure their website in a manner that placed the terms of sale directly up front, in a conspicuous place, for all to see. Assuming, without deciding, that the conspicuous placement of such terms of sale on the website of an internet merchant would be sufficient even in cases where the transaction arose from an email solicitation, defendants' "terms of sale" were "submerged" too deeply to become a binding part of any sale agreement. As Specht and Hoffman teach, "submerged" forum selection clauses will not be enforced under basic contract law principles. In closing, this Court reiterates that forum selection clauses are prima facie valid when a party can show that the clause was incorporated into the parties' contract. However, e-commerce merchants cannot blithely assume that the inclusion of sale terms, listed somewhere on a hyperlinked page on its website, will be deemed part of any contract of sale. In order for defendants to obtain dismissal of this action on the theory that the instant dispute is subject to a binding forum selection clause, plaintiff had to prove that the clause is properly part of the parties' contract. Defendants' moving papers fail to meet that burden. Accordingly, defendants' motion to dismiss the action, pursuant to CPLR 3211(a)(1) and or 3211(a)(7), based upon the forum selection language on their website, must be DENIED.

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III. Pleadings & Motion Practice a. Pleadings 1. Pleadings Failure To Submit Proposed Amended Pleading; Proposed Pleading Without Merit Dinstber v. Allsate Ins. Co., 2013 NY Slip Op 07103 (3d Dep’t 2013) Nor did Supreme Court abuse its discretion in denying plaintiff's cross motion for leave to amend the complaint, as plaintiff failed to establish that the proposed amendment is not plainly without merit (citations omitted). Here, plaintiff failed to submit a copy of the proposed amended pleading, and his conclusory allegations in support of his motion were insufficient to make any evidentiary showing that the proposed amendments have merit (citation omitted). Thus, plaintiff's cross motion was properly denied (citations omitted). Third-Party Action Adequately Pled Blank Rome v. Parrish, 92 A.D.3d 444, 938 N.Y.S.2d 284 (1st Dep’t 2012) In an action by an attorney for unpaid legal fees, with a counterclaim by the defendant client for legal malpractice, the First Department affirmed the trial court’s denial of the motion to dismiss the third-party claims for contribution: Insofar as the third-party and proposed amended third-party complaints allege that BMF represented defendant, agreed to represent him with respect to the issues giving rise to the legal malpractice alleged in defendant's counterclaims, and that BMF was negligent with respect to such representation, the motion court properly declined to dismiss Blank Rome's third-party claims for contribution since this cause of action was sufficiently pleaded (citation and parenthetical omitted). However, the motion court erred when it denied BMF's motion to the extent it sought to dismiss the third-party cause of action for indemnification. In order to recover on a claim for common law indemnification, "the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law" (citation omitted). Here, insofar as neither the third-party nor proposed amended third-party complaint assert that Blank Rome, LLP's liability is solely statutory and not based upon its own negligence, they fail to state a cause of action for common law indemnification. Blank Rome also fails to state a cause of action for contractual indemnification since "[a] party is entitled to full © 2013 David Paul Horowitz, All Rights Reserved

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contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances" (citations omitted). Here, neither the thirdparty nor the proposed amended third-party complaint identifies any agreement, let alone alleges that BMF ever agreed to indemnify Blank Rome, LLP for any legal malpractice committed in the course of its representation of the defendant. With respect to Blank Rome, LLP's cause of action for contribution, since the allegations within the proposed amended third-party complaint have merit and there has been no showing of prejudice, the motion court providently exercised its discretion in granting leave to amend the third-party complaint (citation omitted). Third-Party Action Impleader Improper Where Stipulation Of Discontinuance In Main Action Settled & Discontinued All Of Plaintiff’s Claims Sunbelt Rentals, Inc. v. Tempest Windows, 94 A.D.3d 1088, 943 N.Y.S.2d 197 (2d Dep’t 2012) CPLR 1007 permits a defendant to implead, by means of a third-party action, "a person not a party who is or may be liable to that defendant for all or part of the plaintiff's claim against that defendant" (citations omitted). "Impleader is available even if the impleaded party owes no duty whatsoever to the primary plaintiff. However, the liability sought to be imposed upon a third-party defendant must arise from or be conditioned upon the liability asserted against the thirdparty plaintiff in the main action" (citation omitted). Westchester was dismissed from the action pursuant to the stipulation which settled and discontinued all of Sunbelt's causes of action against all of the defendants (citation omitted), requiring the third-party plaintiffs to recommence a proper action in the proper forum in order to obtain relief against Westchester. The third-party complaint, however, sought damages arising from Tempest's alleged breach of the contract between Tempest and J Construction, not those arising from Sunbelt's claims against J Construction and Banner. Thus, the liability sought to be imposed upon Westchester did not "arise from [and was not] conditioned upon the liability asserted against the third-party plaintiff[s] in the main action" (citation omitted). Further, since Sunbelt's claims were discontinued against the third-party plaintiffs, they are no longer liable to Sunbelt for any damages. Accordingly, since Sunbelt can no longer hold the third-party plaintiffs liable, the third-party plaintiffs cannot implead Westchester pursuant to CPLR 1007 (citation omitted), and the Supreme Court should have granted Westchester's motion pursuant to CPLR 3211 (a) to dismiss the third-party complaint for failure to state a third-party cause of action (citations omitted). For the same reasons, the third-party plaintiffs failed to establish their entitlement to judgment as a matter of law on the first cause of action in the third-party complaint, and the Supreme Court, thus, should have denied that branch of the third-party plaintiffs' cross motion which was for summary judgment on that cause of action, regardless of © 2013 David Paul Horowitz, All Rights Reserved

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the sufficiency of Westchester's opposition papers. CPLR §3211 Motion To Dismiss Granted Where Plaintiff Failed To State Legally Cognizable Claim Cascardo v. Stacchini, 100 A.D.3d 675, 954 N.Y.S.2d 177 (2d Dep’t 2012) Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord [the plaintiff] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (citation omitted). "Such a motion should be granted where, even viewing the allegations as true, the plaintiff cannot establish a cause of action" (citations omitted). Here, even viewing the factual allegations of the complaint as true, they failed to adequately state a legally cognizable cause of action. Indeed, in this action against the attorneys who represented her adversaries in unrelated litigation, the plaintiff cannot allege the existence of the requisite contractual, fiduciary, or attorneyclient relationship between herself and the defendants to support her various claims sounding in breach of contract, breach of fiduciary duty, and legal malpractice (citation omitted). Likewise, the plaintiff cannot properly plead reasonable reliance on the representations of another party's counsel so as to support her claim of fraud (citation omitted). The plaintiff's remaining contentions regarding the defendants' motion to dismiss the complaint are without merit. The appeal from the portion of the order denying the plaintiff's applications for an award of sanctions and for permission to replead or recommence the action must be dismissed, since no appeal lies as of right from this portion of the order, which did not result from a motion made on notice, and leave to appeal has not been granted (citations omitted).

2. Amendments Plaintiff Granted Leave To Amend Complaint To Reflect Correct Defendant’s Name NYRU, Inc. v. Forge Rest., LLC, 92 A.D.3d 511, 938 N.Y.S.2d 306 (1st Dep’t 2012) The motion court properly granted plaintiff leave to amend the complaint to correct defendant's name, since process was served on an employee of defendant, defendant participated in discovery, and no prejudice to defendant from the © 2013 David Paul Horowitz, All Rights Reserved

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amendment was demonstrated (citation omitted). Leave Granted To Defendant To Amend Answer To Assert Affirmative Defense Based Upon Running Of Statute Of Limitations Giuffre v. DiLeo, 90 A.D.3d 602, 934 N.Y.S.2d 449 (2d Dep’t 2011) On June 15, 2005, the plaintiff commenced an action to recover damages for defamation, which was subsequently consolidated with another action against the same defendants. The complaint in the original action alleged that a defamatory statement was posted on the Internet on or about June 15, 2004, and was reposted at some point after September 1, 2004. In April 2010 the defendants moved for leave to amend their answer to include a defense based on the statute of limitations and for summary judgment dismissing the cause of action to recover damages for defamation as time-barred. The Supreme Court granted that branch of the motion which was for leave to amend the answer, but denied that branch of the motion which was for summary judgment. We affirm. The determination of whether to grant leave to amend a pleading is within the court's discretion, and the exercise of that discretion will not be lightly disturbed (citation omitted). Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party (citations omitted). Mere lateness is not a basis for denying amendment unless the lateness is coupled with "significant prejudice to the other side" (citations omitted). Although the defendants waited several years before moving for leave to amend the answer, there was no showing that the plaintiff would be prejudiced, as discovery is ongoing and the plaintiff may still discover relevant information regarding the date of posting or re-posting. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for leave to amend their answer to assert the affirmative defense of statute of limitations Failure To Enclose Proposed Amended Pleading Renders Motion To Amend Procedurally Defective Kendall v. Amica General Agency, Inc., 2012 N.Y. Slip Op. 31779(U) (Supreme Court Albany Cty.) After finding that the plaintiff properly intended, but misnamed, entity was served, the court noted that the plaintiff’s motion to serve an amended pleading was procedurally defective: In addition, this portion of Plaintiffs' motion is procedurally deficient. CPLR © 2013 David Paul Horowitz, All Rights Reserved

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§3025(b) specifically commands that "[a]ny motion to amend ... shall be accompanied by the proposed amended ... pleading clearly showing the changes or additions to be made to the pleading." (emphasis in original, citations omitted), their motion to amend is procedurally flawed.

3. Demand for Complaint Failure To Serve Timely Serve Complaint In Response To Demand Leads To Dismissal Where Plaintiff Fails To Demonstrate Merit & Reasonable Excuse; No Waiver By Defendant’s Retention Of Complaint Abele Tractor & Equip. Co., Inc. v. R.J. Valente, 94 A.D.3d 1270, 942 N.Y.S.2d 668 (3d Dep’t 2012) Trial Court dismissed plaintiff’s complaint and denied reconsideration: We affirm. Preliminarily, although plaintiff indeed failed to file its brief and record on appeal within 60 days of service of the notice of appeal (citation omitted), defendants did not move to dismiss the appeal based upon plaintiff's noncompliance (citations omitted). Further, contrary to defendants' assertion, plaintiff's appeal is not deemed to have been abandoned (citation omitted). Nor are we persuaded that defendants' retention of plaintiff's admittedly untimely complaint deprived them of the ability to object to its late service. Although this Court previously has held that "[p]hysical retention of a pleading for an extended period of time will almost invariably constitute a waiver of its late service" (citation omitted), no such waiver occurred here. Within two weeks of receiving plaintiff's tardy complaint, defendants voiced their objection thereto by serving an answer raising untimely service as an affirmative defense and making a contemporaneous motion to dismiss pursuant to CPLR 3012 (b). Under these circumstances, defendants did not waive any objection to the late service. Turning to the merits, in order to avoid dismissal under CPLR 3012 (b), plaintiff was required to demonstrate both a meritorious cause of action and a reasonable excuse for the delay (citations omitted). Here, Supreme Court accepted plaintiff's proffered excuse for the delay in serving the complaint—namely, excusable law office failure—and we discern no abuse of Supreme Court's sound discretion in that regard (citation omitted). As to the meritorious cause of action requirement, a plaintiff seeking to avoid dismissal must submit "an affidavit or a verified pleading containing evidentiary facts and attested by an individual with personal knowledge of those facts" (citations omitted). Stated another way, a plaintiff must tender "sufficient firsthand evidence of a meritorious claim" (citation omitted). Although an affidavit from an attorney that is both based upon personal knowledge and contains competent evidentiary proof may be sufficient to establish the merits of a © 2013 David Paul Horowitz, All Rights Reserved

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plaintiff's claim (citation omitted), an affirmation that merely asserts—in a conclusory fashion—that the attorney is "fully familiar with the facts" (citations omitted) and/or summarizes or paraphrases the allegations set forth in the underlying complaint or bill of particulars will not suffice (citations omitted) Here, plaintiff tendered an affirmation from counsel, together with the relevant rental agreement and accompanying invoices.* Although counsel indeed attested that she was personally familiar with the underlying facts and circumstances, the affirmation as a whole does not, in our view, contain sufficient evidentiary facts to establish, among other things, that plaintiff's claim has merit. As counsel's affirmation, even when considered with the attached rental agreement and invoices (citation omitted), is insufficient to demonstrate that plaintiff has a meritorious cause of action (citations omitted), defendants' motion to dismiss was properly granted.

4. Bill of Particulars Bill Of Particulars Alleging Further Details Of Previously Alleged Injury Was Supplemental, & Did Not Require Leave Of Court Anderson v. Ariel Services, 93 A.D.3d 525, 941 N.Y.S.2d 40 (1st Dep’t 2012) Plaintiff's third verified bill of particulars, which, inter alia, alleges that she had a third surgery, to remove hardware from her left tibia, the insertion of which hardware had been disclosed in an earlier bill of particulars, was a supplemental bill of particulars which concerned the "continuing consequences" of her previously identified injury, and thus, did not require prior leave of the court (citation omitted). Since discovery relating to the third surgery had not previously been ordered, the court's direction of related disclosure, rather than sanctions, was appropriate. Demand For Bill Of Particulars Improperly Sought Evidentiary Matter; Preclusion Denied Fremond Inv. & Loan v. Gentile, 94 A.D.3d 1046, 943 N.Y.S.2d 182 (2d Dep’t 2012) Ordered that the order is affirmed insofar as appealed from, with costs. The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial (citations omitted). "A bill of particulars may not be used to obtain evidentiary material" (citations omitted). Here, the appellant's demand for a bill of particulars improperly included requests for detailed information of an evidentiary nature (citations omitted). Thus, the responses in the plaintiff's bill of particulars objecting to those demands constituted an adequate response. Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was to preclude the plaintiff © 2013 David Paul Horowitz, All Rights Reserved

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from giving evidence at trial with respect to the denials of and defenses to the appellant's counterclaim, as set forth in the plaintiff's bill of particulars. Trial Court Properly Determined That “Supplemental Bill” Improperly Contained New & Distinct Theories Of Liability Jurkowski v. Sheehan Mem. Hosp., 85 A.D.3d 1672, 926 N.Y.S.2d 781 (4th Dep’t 2011); leave den. 87 A.D.3d 1416, 930 N.Y.S.2d 170; leave den. 18 N.Y.3d 804, 963 N.E.2d 126, 939 N.Y.S.2d 749 (2012) Contrary to plaintiff's further contention in each appeal, the court properly determined that the additional allegations in the "supplemental" bills of particulars, including the allegation that the Hospital and defendant Bhavansa Padmanabha, M.D. failed to physically restrain plaintiff from leaving the emergency room, are new and distinct theories of liability not previously raised (citations omitted). Thus, although labeled as "supplemental," they were actually amended bills of particulars. Inasmuch as the amended bills of particulars were served without leave of the court after the note of issue was filed, they were a nullity with respect to those newly alleged theories (citations omitted).

b. Motion Practice 1. Proof Of Freedom From Comparative Fault Second Department Panel Affirms Denial Of Plaintiff’s Summary Judgment Motion Due To Plaintiff’s Failure To Establish Freedom From Comparative Fault Stern v. Amboy Bus Co., Inc., 2013 NY Slip Op 00193 (2d Dep’t 2013) The Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability. The evidence submitted in support of the motion did not establish that the plaintiff driver was free from comparative fault, and that the defendant driver's alleged violation of Vehicle and Traffic Law § 1142(a) was the sole proximate cause of the accident (citations omitted). In light of the plaintiffs' failure to meet their prima facie burden, we need not consider the sufficiency of the defendants' opposition papers (citation omitted).

2. Renewal Motion Renewal Properly Granted Permitting Substitution Of Affidavit For Incompetent Affirmation Hayden v. Gordon, 91 A.D.3d 819, 937 N.Y.S.2d 299 (2d Dep’t 2012) Under the circumstances presented, the Supreme Court providently exercised its discretion in granting the plaintiffs' motion for leave to renew their opposition to © 2013 David Paul Horowitz, All Rights Reserved

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the appellant's prior motion for summary judgment dismissing the amended complaint insofar as asserted against him, allowing the movants the opportunity to correct the technical defect of having submitted an affirmation rather than a sworn affidavit of their expert physician, who was not "authorized by law to practice in" New York as required by CPLR 2106 (citations omitted). Moreover, the Supreme Court did not improvidently exercise its discretion in considering the expert affidavit submitted by the plaintiffs, since there was no evidence that the failure to disclose the identity of their expert witness pursuant to CPLR 3101 (d) (1) (i) was intentional or willful, and there was no showing of prejudice to the appellant (citations omitted). Renewal Should Have Been Granted For Defendant’s Motion For Summary Judgment On Stautute Of Limitations Grounds Schwelnus v. Urological Assoc., 94 A.D.3d 971, 943 N.Y.S.2d 141 (2d Dep’t 2012) The Supreme Court improvidently exercised its discretion in denying the defendants' motion for leave to renew their motion for summary judgment dismissing the complaint on the ground that the defendants' motion was not based upon new facts not offered on the prior motion. CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form (citations omitted). The defendants corrected their inadvertent procedural errors with respect to the transcripts and provided a reasonable justification for failing to present the transcripts in admissible form in support of their motion for summary judgment such that leave to renew should have been granted (citations omitted). Second Department Holds CPLR 2214(c) Mandates Denial Of E-Filed Motion To Renew Or Reargue Where The Originally Filed Papers Were Not Included In The Second Motion Biscone v. Jet Blue Airways, Corp., 103 A.D.3d 158, 957 N.Y.S.2d 361 (2d Dep’t 2012) The Second Department affirmed a trial court’s determination that compliance with CPLR 2214(c) requires that a party seeking leave to renew or reargue cannot rely upon reference to e-filed documents in lieu of annexing a complete set of the originally submitted motion papers, a holding that applies equally to physically filed papers: Initially, the appeal from so much of the order dated January 27, 2011, as denied that branch of the plaintiff's motion which was for leave to reargue her motion for © 2013 David Paul Horowitz, All Rights Reserved

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class certification must be dismissed, as no appeal lies from an order denying reargument. There is no dispute that the plaintiff did not submit complete copies of her initial supporting papers when she moved, inter alia, for leave to renew her motion for class certification after issue was joined. Instead, in her moving papers, the plaintiff made reference to electronic docket entry numbers referencing the previously e-filed documents on which she relied. The plaintiff argues that she was not required by any court rule to submit supporting documents in paper form or electronically, and, as the practice in federal court permits, she should simply be able to refer to the electronic docket entry number and deem the documents "furnished to the court" pursuant to CPLR 2214. Further, she asserts that the cases relied upon by the Supreme Court involve pre-electronic-filing cases and are inapplicable to cases using the e-filing system. She urges this Court to review her motion for class certification de novo and grant the motion. In opposition, JetBlue contends that the Supreme Court properly denied that branch of the motion which was for leave to renew because the plaintiff was required by CPLR 2214 to submit a copy of the supporting papers regardless of the fact that the documents had previously been submitted electronically in connection with the initial motion. CPLR 2214(c) provides, in pertinent part: Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved . . . 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." Where parties in civil actions commenced in the Supreme Court and the County Court consent to e-file, "all documents required to be filed with the court by a party . . . shall be filed and served electronically" (citation omitted). When a document has been filed electronically, "the official record shall be the electronic recording of the document stored by the clerk" (citation omitted). "The court may require the parties to provide working copies of documents filed electronically" (citation omitted). There is no authority for compelling [a court] to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214(c), the court may refuse to consider improperly submitted papers" (citations omitted). Some trial courts, in deciding motions for leave to renew and/or reargue, have concluded that the moving party's failure to submit the © 2013 David Paul Horowitz, All Rights Reserved

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papers relied upon in connection with the initial motion renders the motion for leave to renew and/or reargue defective (citations omitted). Contrary to the plaintiff's contention, in moving for renewal, both CPLR 2214 and the court rules governing e-filing required her to submit electronically the papers originally submitted with her motion for class certification. Unlike the practice in certain federal district courts, relied upon by the plaintiff, no provision in 22 NYCRR 202.5-b permits a party to refer to supporting documents by the e-filed docket entry number rather than filing the documents themselves. Indeed, 22 NYCRR 202.5-b(d)(1)(i) provides that "all documents required to be filed with the court by a party . . . shall be filed and served electronically" (22 NYCRR 202.5-b[d][1][i] [emphasis added]). Thus, the plaintiff's initial motion for class certification and its accompanying exhibits and the responding papers should have been electronically filed with the court as an exhibit to the plaintiff's motion, inter alia, for leave to renew. While the above-cited decisions, holding that motions for leave to renew and/or reargue were defective because the movant failed to submit a proper record, did not involve e-filed cases, the rationale for those decisions nevertheless applies to the case at bar notwithstanding the greater efficacy of the e-filing system. If a party simply refers to docket entry numbers, the motion court would still be forced to expend time locating those documents in the system, a task that could easily be complicated by a voluminous record or incorrect citations to docket entry numbers. Consequently, just as a court "should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions" (citation omitted), a court should likewise not be compelled, absent a rule providing otherwise, to locate previously submitted documents in the electronic record in considering subsequent motions. Here, the plaintiff only submitted an attorney's affirmation referring to the docket entry numbers of previously submitted documents and a memorandum of law in support of her motion for leave to renew or reargue, and failed to submit any of the documents necessary for the determination of the subject motion (citation omitted). Whether to grant leave to renew or reargue is within the sound discretion of the motion court (citations omitted). The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to renew on the basis that the plaintiff's supporting papers were insufficient. Accordingly, the order entered October 12, 2010, is affirmed insofar as appealed from, the appeal from so much of the order dated January 27, 2011, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument, and the order dated January 27, 2011, is affirmed insofar as reviewed.

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Trial Court Applies Biscone To Traditionally Filed Action See, New Century Mortgage Corp. v. Kogan, 7897/07, NYLJ 1202585974924, at *1 (Sup., KI, Decided January 14, 2013) Three Bites At The Apple Kalir v. Ottinger, 2011 N.Y. Slip Op. 33502(U) (Supreme Court N.Y. Co.) (York, J.) In an action for legal fees between two attorneys, plaintiff moved for summary judgment and the defendant opposed the motion with an attorney’s affirmation. CPLR 2106 does not permit the submission of an affirmation by someone who is a party to the action. Without a proper notarization of defendant’s signature rendered the defendants’ opposition papers insufficient and the court, therefore, granted plaintiff summary judgment on liability. Defendants moved for leave to renew and/or reargue, and the court denied the motion because defendants failed to provide a copy of the prior order upon which the motion to reargue was based. Defendants then made a second motion to renew and/or reargue: Plaintiff raises several arguments in opposition to the motion. Plaintiff asserts that defendants have no basis in law for their motion to renew or reargue because defendants have not raised any matters of fact or law that would change the prior determination by the court. Defendants dispute this assertion. In addition, plaintiff contends that the motion should be denied because the defendant's affidavit was not submitted with an accompanying certificate necessary in oaths and affirmations taken without the state and, thus defendant again have violated CPLR 2221. Defendants also submit a reply memorandum of law in which they argue that they repeatedly identify a reasonable excuse for their submission of an affirmation instead of an affidavit in opposition to plaintiff's motion for summary judgment, and in particular, that with the submission of the certificate of conformity and the certificate of authentication in accordance with CPLR 2309(c), the new Ottinger affidavit should be accepted. For the reasons below, the Court grants defendants' leave to renew but, upon renewal, denies the underlying motion. Plaintiff asserts that the motion to renew should be denied because of a lack of new facts not offered on the prior motion for summary judgment. However, courts © 2013 David Paul Horowitz, All Rights Reserved

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"have broad discretion to grant renewal and may in appropriate circumstances do so even upon facts known to the movant at the time of the earlier motion" (citations omitted). Although renewal is generally not available where the newly submitted material was available at the time of the original motion, the court has the discretion to grant renewal if there is no prejudice (citation omitted). In the case at hand, plaintiff submitted an affirmation which contained the same assertions that are in the affidavit. Thus, defendants were aware of the pertinent facts at the time of the original motion. Moreover, because the error was procedural, renewal is proper to correct the motion (citation omitted). In addition, plaintiff has failed to articulate any prejudice, and the submission of an affirmation instead of an affidavit was clearly inadvertent. The First Department has held that renewal may be granted "where the failure to submit an affidavit in admissible form is inadvertent and there is no showing by the opposing party of any prejudice attributable to the delay caused by the failure" (citation omitted). In B.B.Y Diamonds Corp., in support of their motion and in opposition to the plaintiff's cross motion, the defendants submitted an affidavit of the defendant that was not notarized (id.). On their motion to renew, the defendants submitted a re-dated and notarized affidavit and an affirmation from counsel explaining that originally he "must have overlooked the fact that the affidavit was not notarized." (Citation omitted). The First Department, finding that the trial court should have granted the motion to renew, noted that there was no prejudice because the two affidavits were identical except for the ministerial corrections (citation omitted). Here, too, defendants' failure was demonstrably inadvertent, and their subsequent submission of a new affidavit corrects the procedural defect. Here too, plaintiff has failed to show any prejudice. In opposition to defendant's motion, plaintiff relies solely on Second Department case law to support its assertion that, regardless of the lack of prejudice, renewal should not be granted because defendant failed to provide reasonable justification as to why the document were not in proper form when first submitted. (Citations omitted). However, the First Department, which binds this Court, allows the trial court the discretion to grant renewal in the absence of prejudice, even where the original failure was due to the movant's mistake. (Citation omitted). Moreover, the Court's grant of renewal under the circumstances in this motion conforms with New York's strong public policy favoring the resolution of cases, and the substantive motions which arise during the course of litigation, on their merits (Citation omitted). Finally, plaintiff contends that because defendants submitted defective documents to the Court on two prior occasions, they are requesting a "second (flawed) bite of the apple," and their application should be denied (Plaintiff's Opposition at pg. 6). Although there is limited case law concerning the repeated submission of defective documents, the court applies general principals of fairness and determines that defendants' errors do not rise to the level warranting denial of this motion where, as here, they have remedied the defects. In addition, the Court © 2013 David Paul Horowitz, All Rights Reserved

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notes that it denied the second motion solely because defendants did not provide a copy of all pertinent papers and that the denial was without prejudice to defendants' right to renew the motion, annexing the proper papers.

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IV. Ethical Issues In Electronic Disclosure a. 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 prepara- tion 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.

b. Revised Court Rules Addresses Electronic Disclosure Trial Courts § 202.12 Preliminary Conference. b) The court shall notify all parties of the scheduled conference date, which shall be not more than 45 days from the date the request for judicial intervention is filed unless the court orders otherwise, and a form of a stipulation and order, prescribed by the Chief Administrator of the Courts, shall be made available which the parties may sign, agreeing to a timetable which shall provide for completion of disclosure within 12 months of the filing of the request for judicial intervention for a standard case, or within 15 months of such filing for a complex case. If all parties sign the form and return it to the court before the scheduled preliminary conference, such form shall be "so ordered" by the court, and, unless the court orders otherwise, the scheduled preliminary conference shall be canceled. If such stipulation is not returned signed by all parties, the parties shall appear at the conference. Except where a party appears in the action pro se, an attorney thoroughly familiar with the action and authorized to act on behalf of the party shall appear at such conference. Where a case is reasonably likely to include electronic discovery, counsel for all parties who appear at the preliminary conference must be sufficiently versed in matters relating to their clients' technological systems to discuss competently all issues relating to electronic discovery: counsel may bring a client representative or outside expert to assist in such e-discoverv discussions. (1) A non-exhaustive list of considerations for determining whether a case is reasonably likely to include electronic discovery is: (i) Does potentially relevant electronically stored information (“ESI”) exist; (ii) Do any of the parties intend to seek or rely upon ESI; © 2013 David Paul Horowitz, All Rights Reserved

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(iii) Are there less costly or less burdensome alternatives to secure the necessary information without recourse to discovery of ESI; (iv) Are the cost and burden of preserving and producing ESI proportionate to the amount in controversy; and (v) What is the likelihood that discovery of ESI will aid in the resolution of the dispute. (c) The matters to be considered at the preliminary conference shall include: (1) Simplification and limitation of factual and legal issues, where appropriate; (2) Establishment of a timetable for the completion of all disclosure, proceedings, provided that all such procedures must be completed within the timeframes set forth in subdivision (b), unless otherwise shortened or extended by the court depending upon the circumstances of the case; (3) Where the court deems appropriate, establishment of the method and scope of any electronic discovery, including but not limited to (a) retention of electronic data and implementation of a data preservation plan, (b) scope of electronic data review, (c) identification of relevant data, (d) identification and redaction of privileged electronic data, (e) the scope, extent and form of production, (f) anticipated cost of data recovery and proposed initial allocation of such cost, (g) disclosure of the programs and manner in which the data is maintained, (h) identification of computer system(s) utilized, and (i) identification of the individual(s) responsible for data preservation; it may establish the method and scope of any electronic discovery. In establishing the method and scope of electronic discovery, the court may consider the following non-exhaustive list, including but not limited to: (i) identification of potentially relevant types or categories of ESI and the relevant time frame; (ii) disclosure of the applications and manner in which the ESI is maintained; (iii) identification of potentially relevant sources of ESI and whether the ESI is reasonably accessible; (iv) implementation of a preservation plan for potentially relevant ESI; (v) identification of the individual(s) responsible for preservation of ESI; (vi) the scope, extent, order, and form of production; (vii) identification, redaction, labeling, and logging of privileged or confidential ESI; (viii) claw-back or other provisions for privileged or protected ESI; (ix) the scope or method for searching and reviewing ESI; and (x) the anticipated cost and burden of data recovery and proposed initial allocation of such cost. Amended eff. Sept. 23, 2013 § 202.70 Rules of the Commercial Division of the Supreme Court (g) Rules of practice for the Commercial Division Rule 8. Consultation prior to Preliminary and Compliance Conferences

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(a) Counsel for all parties shall consult prior to a preliminary or compliance conference about (i) resolution of the case, in whole or in part; (ii) discovery and any other issues to be discussed at the conference, including the timing and scope of expert disclosure under Rule 13(c); and (iii) the use of alternate dispute resolution to resolve all or some issues in the litigation. Counsel shall make a good faith effort to reach agreement on these matters in advance of the conference. (b) Prior to the preliminary conference, counsel shall confer with regard to anticipated electronic discovery issues. Such issues shall be addressed with the court at the preliminary conference and shall include but not be limited to (i) implementation of a data preservation plan; (ii) identification of relevant data; (iii) the scope, extent and form of production; (iv) anticipated cost of data recovery and proposed initial allocation of such cost; (v) disclosure of the programs and manner in which the data is maintained; (vi) identification of computer system(s) utilized; (vii) identification of the individual(s) responsible for data preservation; (viii) confidentiality and privilege issues; and (ix) identification of potentially relevant types or categories of electronically stored information ("ESI") and the relevant time frame; (ii) disclosure of the applications and manner in which the ESI is maintained; (iii) identification of potentially relevant sources of ESI and whether the ESI is reasonably accessible; (iv) implementation of a preservation plan for potentially relevant ESI; (v) identification of the individual(s) responsible for preservation of ESI; (vi) the scope, extent, order, and form of production; (vii) identification, redaction, labeling, and logging of privileged or confidential ESI; (viii) claw-back or other provisions for privileged or protected ESI; (ix) the scope or method for searching and reviewing ESI; (x) the anticipated cost and burden of data recovery and proposed initial allocation of such costs; and (xi) designation of experts. Amended eff. Sept. 23, 2013 NB:

A new provision permits a request to avoid a personal appearance at a conference:

§ 202.10 Appearance at conference. Any party may request to appear at a conference by telephonic or other electronic means. Where feasible and appropriate, the court is encouraged to grant such requests. Added eff. May 20, 2013.

c. Cost Of Production MBIA Ins. Corp. v. Credit Suisse Sec. (USA) LLC, 103 A.D.3d 486, 960 N.Y.S.2d 25 (1st Dep’t 2013) This is an action for fraud and breach of contractual representations and warranties by plaintiff, a financial guaranty insurance provider, against defendants, the sponsor, underwriter and servicer of a transaction in which thousands of residential mortgage loans were consolidated into a pool and © 2013 David Paul Horowitz, All Rights Reserved

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transferred to a trust formed to issue mortgage-backed securities. None of the parties served as the originator of the underlying mortgage loan transactions or had any direct relationship with any borrower. Supreme Court correctly denied plaintiff's motion for an open-ended commission to take the deposition and obtain document disclosure, including, among other things, personal investment and bank account statements and personal income tax returns, from nonparty residential mortgage borrowers in every state except New York, three United States territories and the District of Columbia, since plaintiff failed to make a "strong showing of necessity and demonstrate that the information . . . is unavailable from other sources" (citations omitted). Since the parties offer conflicting interpretations of the warranties and representations found in the parties' insurance agreement, the relevance of the requested material is, at best, still yet to be established. Furthermore, in seeking extensive amounts of duplicative, personal and confidential financial information from over five years ago, the discovery request constitutes an undue burden and expense on the responding nonparties (citation omitted). Plaintiff's contention that this discovery is material and necessary to its fraud and breach of contract claims because it could potentially yield evidence that a borrower fraudulently or negligently misrepresented the financial information provided on his or her mortgage loan application is not supported by particularized factual allegations specific to any of the borrowers selected for this disclosure. For the same reasons, the court properly denied plaintiff's motion to the extent that it sought an open-ended commission to serve subpoenas on the employer of each borrower. While plaintiff argues that every other court has permitted nonparty discovery of this nature, we find those cases to be distinguishable based on differences in the parties' governing agreements or the defendants' direct relationship with the borrowers as originator of the mortgage loans, and in any event, since all of the orders cited by plaintiff are from a trial level state or federal court, they do not constitute binding authority and need not be followed. Denial is proper for the additional reason that plaintiff has failed to demonstrate that a commission is "necessary or convenient" (citation omitted), by neglecting to include "allegations that the proposed out-of-State deponent would not cooperate with a notice of deposition or would not voluntarily come within this State or that the judicial imprimatur accompanying a commission will be necessary or helpful" (citations omitted).

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d. Litigation Holds & Spoliation Of ESI Last Year’s Adoption Of Zubulake By First Department In ESI Spoliation Context Does Not Extend To Non-ESI Spoliaiton Strong v. City of New York, 2013 NY Slip Op 06655 (1st Dep’t 2013) The First Department framed the issue: This appeal requires us to decide whether spoliation sanctions were merited for the failure of defendant City to take steps to prevent the automatic destruction of a recorded radio run that could have either confirmed or called into question its asserted "emergency operation" affirmative defense under Vehicle and Traffic Law §§ 114-b, 1103 and 1104. To decide whether this failure constituted spoliation, we must determine the proper legal standards to be applied where the destroyed evidentiary material at issue is an audiotape of a radio communication. In particular, we must decide whether this spoliation claim can be fully addressed with the established New York spoliation doctrine, or whether we should apply, in this context, the Zubulake standard regarding spoliation of discoverable electronically stored information (ESI) (citation omitted), which has already been adopted in this Department in cases involving ESI discovery (citations omitted). After reviewing the facts of the case, and concluding that the negligent erasure of audiotapes can constitute spoliation, the First Department rejected the City’s argument that it did not have the requisite notice: We reject the City's assertion that it was not on notice that the recording might be needed for future litigation before it was erased. The City was placed on notice of plaintiffs' claim and its own claimed affirmative defense within the 180 days after the recording was made, by (1) the filing of plaintiff Strong's notice of claim, (2) the evidence given at his 50-h hearing, and (3) if nothing else, by the City's service of its answer to the Strong complaint on September 21, 2009, in which it actually raised the emergency doctrine defense, making any evidence tending to establish that defense highly relevant. The City therefore had the obligation to take steps to prevent the automatic erasure of any audio recording from that incident, and its failure to do so constituted spoliation. In addition, plaintiffs established that the Police Department, the presumptive custodian of those records, received notice even before the City could be brought into the action, through the order to show cause served on the Police Department by Strong's former lawyer, seeking copies of radio dispatch calls and reports relating to the accident. Although the affirmation of service of the order to show cause was not attached with the other attachments to Strong's May 31, 2011 motion, his counsel explained, without dispute, that a copy of the affirmation of © 2013 David Paul Horowitz, All Rights Reserved

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service, included in the record, was handed up to the court and counsel on the calendar date. And, while the order to show cause was ultimately withdrawn, service of it gave the Police Department notice that plaintiffs might need the type of audio recording at issue here. The First Department held that the spoliation of this non-ESI material could be addressed under New York law without reference to federal ESI decisions, notably Zubulake: As the foregoing establishes, plaintiffs' spoliation claim can be fully addressed under New York's common-law spoliation doctrine. However, because plaintiffs rely exclusively on the Zubulake IV rule 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 preserve evidence (220 FRD at 218), we briefly address the question of whether we need to import Zubulake's rules into the established New York common-law rules as to spoliation of non-ESI evidence. The cases in which this Court has explicitly adopted the Zubulake rulings have involved ESI discovery (citations omitted). The usefulness of the Zubulake standard in the e- discovery arena, is, as the Voom Court observed, that it "provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered" (citation omitted). At the same time, as the Voom opinion also observed, Zubulake "is harmonious with New York precedent in the traditional discovery context" (citation omitted). This is an area that did not need greater certainty or clarification. 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. Finally, the First Department determined the appropriate penalty to be imposed: The City's emergency operation defense can still be challenged through examination of the officers involved and their commanding officer. We therefore conclude that the preclusion of any evidence that establishes the defense would be © 2013 David Paul Horowitz, All Rights Reserved

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excessive (citations omitted). The limited preclusion that the motion court ordered initially, preventing the City from introducing testimony as to the contents of the audio recording, is appropriate (citation omitted). If warranted, an adverse inference charge at trial may be an appropriate additional sanction (citations omitted). Finally, since plaintiffs demonstrated that defendants did not comply with their discovery obligations under the initial order, we order the production of unredacted police accident reports to the extent not previously provided, and proper affidavits of compliance. Critical Evidence Spoliated, Including Metadata, Preclusion Ordered Harvey Weiss, Inc. v. Moskowitz, 106 A.D.3d 668, 966 N.Y.S.2d 76 (1st Dep’t 2013) In this action, plaintiff diamond dealer alleges, among other things, that its broker, defendant Mendez Moskowitz and his company defendant BMW Diamonds, Inc., never intended to pay for diamonds it acquired from plaintiff. Defendants counterclaimed, alleging, among other things, that plaintiff failed to pay commissions to defendants. More than two years into this litigation, plaintiff's bookkeeper revealed at his deposition for the first time that certain electronic files that were created to track defendants' commissions were either "lost" or "deleted" at the end of 2007 and 2008, after a copy of the file had been printed. The bookkeeper further testified that he created and kept all of plaintiff's records on one computer, which had been in use for the last ten years. A month later, when defendants' attorney sought to forensically examine the computer to determine if any of the deleted files could be restored, plaintiff's bookkeeper claimed, for the first time, that the computer was "broken" and had been thrown away in late 2009 or early 2010, after the commencement of this action. Thereafter, the bookkeeper testified that numerous documents supporting plaintiff's claim that defendants were not entitled to commissions could not be produced because they were stored only on the discarded computer. Spoliation sanctions were appropriate based on plaintiff's disposal of the computer. Plaintiff was put on notice of its obligation to "preserve all relevant records, electronic or otherwise," at the very latest, in July 2009, when it received defendants' answer asserting counterclaims for commissions (citation omitted). Plaintiff's conduct evinces a higher degree of culpability than mere negligence (citation omitted). Indeed, the record shows that, despite numerous court orders and the court's assignment of a special referee to supervise discovery, plaintiff delayed discovery and did not disclose to defendants that it had discarded the subject computer for almost two years, notwithstanding that such disclosure was specifically requested by defendants. Further, the testimony of plaintiff's © 2013 David Paul Horowitz, All Rights Reserved

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bookkeeper that a litigation hold, either written or oral, was never issued directing him to preserve electronic data, supports a finding that plaintiff's disposal of the subject computer was, at the very least, grossly negligent (citation omitted). Defendants established that plaintiff's spoliation of critical evidence compromised defendants' ability to prosecute their counterclaims (citation omitted). Accordingly, the court did not abuse its discretion in determining that preclusion was an appropriate spoliation sanction. Plaintiff's contention that its disposal of the subject computer did not cause defendants any prejudice because many of the files were printed prior to its disposal and had subsequently been produced to defendants is contradicted by the deposition testimony of its own bookkeeper. Moreover, converting the files from their native format to hard-copy form would have resulted in the loss of discoverable metadata (citations omitted). In addition, by discarding the computer after its duty to preserve had attached without giving notice to defendants, plaintiff deprived defendants of the opportunity to have their own expert examine the computer to determine if the deleted files could be restored (citation omitted) . Plaintiff never requested an evidentiary hearing before the motion court; therefore, its current claim that it is entitled to a hearing is not preserved for our review (citation omitted). Striking Of Defendant’s Answer Affirmed Suffolk P.E.T. Mgt., LLC, 105 A.D.3d 462, 962 N.Y.S.2d 138 (1st Dep’t 2013) The motion was properly granted inasmuch as the record supports the findings that defendants engaged in willful and contumacious conduct by their failure to comply with the court's discovery orders and directives (citations omitted). There exists no basis to disturb the credibility determinations made by the Special Referee (citation omitted). Here, while defendants produced much documentation during discovery, a forensic study of defendants' computer hard drives revealed evidence that conflicted with defendants' assertions that all relevant documents, including electronic information, had been produced. Many of the records that plaintiffs sought and were not provided with were material to plaintiffs' case, and were required to be maintained by defendants, as per the parties' contract. The evidence further shows that defendants, over a two-year period, failed to conduct timely searches for requested documents, failed to preserve material documents despite an awareness of the action and otherwise affirmatively interfered with plaintiffs' efforts to collect discoverable material. Moreover, defendants were alerted to the potential consequences of incomplete disclosure during the several hearings conducted by the court on the discovery issues.

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Where Plaintiff Not “Prejudicially Bereft” Of Proof, Adverse Inference Appropriate Sanction Suazo v. Linden Plaza Assoc., LP, 102 A.D.3d 570, 958 N.Y.S.2d 359 (1st Dep’t 2013) Since defendants were "on notice of a credible probability that [they would] become involved in litigation" (citation omitted), plaintiff demonstrated that defendants' failure to take active steps to halt the process of automatically recording over 30- to 45-day-old surveillance video and to preserve it for litigation constituted spoliation of evidence (citation omitted). However, spoliation of the video did not "leave[] [plaintiff] prejudicially bereft of appropriate means to confront a claim [or defense] with incisive evidence" (citation omitted). At trial plaintiff may present testimony of the two deponents who viewed the video to establish that the assailants were not allowed into the building by a tenant (citation omitted). Therefore, the motion court erred in striking defendants' answer. Accordingly, the appropriate sanction is an adverse inference charge (citations omitted). Spoliation Sanction Properly Denied OrthoTec, LLC v. Healthpoint Capitol, LLC, 106 A.D.3d 472, 964 N.Y.S.2d 421 (1st Dep’t 2013) The motion court properly denied defendants' motion to strike the cause of action for intentional interference with economic advantage as a sanction for spoliation since the spoliation did not deprive defendants of their ability to defend against the claim (citations omitted). With respect to any other spoliation sanction, the court properly found that the "zone of the preservation duty" encompasses only documents drafted subsequent to 2008, when plaintiff began seriously contemplating initiating this litigation (citation omitted), and that the evidence of plaintiff's preservation and collection of any such documents is inadequate to show the degree of its culpability (citation omitted). Spoliation Sanction Denied, Proposed Amendment To Fed. R. Civ. P. 37(e) Considered By Court Sekisui America v. Hart, 2013 U.S. Dist. LEXIS 84544, 2013 WL 2951924 (SDNY 2013) In this case, although NCS recommended against the deletion of the Hart emails, there has been no showing that Taylor directed their erasure for any malevolent purpose. Nonetheless, because Sekisui failed to implement a litigation hold, NCS was able to delete the entire active email folder of an important witness — perhaps the key witness — at a time when Sekisui obviously knew that it might commence a lawsuit seeking substantial monetary damages. This may well rise to the level of gross negligence. The mere fact that Sekisui acted with a culpable © 2013 David Paul Horowitz, All Rights Reserved

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state of mind, however, does not by itself entitle the Hart Defendants to sanctions. The Hart Defendants must also show the emails were relevant (citation omitted) and, more fundamentally, that they suffered prejudice. (Citation omitted). As Judge Francis observed in Orbit One Communications, "once it has been established that discovery-relevant material has been destroyed in bad faith or through gross negligence, it may be presumed that it would have been harmful to the spoliator.... But that is a far cry from presuming that evidence is discoveryrelevant merely because it has been destroyed as the result of a party's failure to abide by recommended preservation practices." (Citation omitted). Control Over Third Parties Implicates Spoliation Sanction Haskins v. First American Title Ins., 2012 U.S. Dist. LEXIS 149947, 2012 WL 5183908 (DCNJ 2012) Here, the duty to preserve clearly applies to First American because litigation is already in progress. Further, the closing files of First American's agents are plainly relevant to plaintiffs' claim. Thus, if it has not already done so, First American must implement a litigation hold to preserve all documents relevant to this litigation that are in its possession, custody, or control. See Mosaid, 348 F. Supp. 2d at 336. As this Court has held, documents may be within First American's control even if it does not have physical possession of the documents. See Flash Memory, 2008 U.S. Dist. LEXIS 40433, 2008 WL 1831668, at *1. Because First American's contractual language establishes that it has possession, custody, or control over relevant documents in the physical possession of its independent title agents, First American's litigation hold must include these documents. Indeed, some of First American's agency contracts anticipated this would occur.

e. Draft Of Proposed Form For Litigation Hold Letter5 Dear NAME: You have been kind enough to retain us to defend CLIENT in the lawsuit captioned Client v. Opponent. As part of this representation, and pursuant to current best practices in litigation in New York courts, I am writing this letter to amplify our conversation of this morning concerning CLIENT’s obligation to preserve materials that may relate to this case. I’m sorry to make this letter sound so complex and lawyer-like, but preservation of materials (and especially electronic files and electronically-stored information (“ESI”)) for litigation has become a hugely complex issue, and the judges in New York have made some severe rulings against parties who have not met their preservation obligations. I surely do not want that to happen here. 5

A draft of a form letter presently under consideration by a committee at the New York City Bar.

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In general terms, CLIENT, together with its employees (including you), officers, members, agents, etc. have a legal duty to preserve all materials that relate to the underlying dispute between or among the parties, or which could otherwise reasonably be anticipated to be subject to discovery in this case. The “materials” I am referring to include traditional paper documents, electronic data or other ESI, and all information preserved in any other tangible form. Lawyers refer to these materials as “documents, data, and tangible things.” “Documents, data, and tangible things” needs to be interpreted in the broadest possible sense. CLIENT should be preserving, at a minimum, documents, data, and tangible things concerning: i) ii) iii) iv)

DESCRIBE DESCRIBE; all communications between or among any of the parties to this case (CLIENT, OPPONENT), or their principals, agents, or employees; and CLIENT’s damages. “Preservation” is also to be interpreted in the broadest possible sense to accomplish the goal of maintaining the integrity of all documents, data, and tangible things reasonably anticipated to be useful or subject to discovery in this case. The duty to preserve means taking reasonable steps to prevent partial or full destruction or alteration. If CLIENT engages in routine processes of destruction, recycling, alteration, or relocation of any documents, data, or tangible things (for example, the automatic deletion of old emails), it is essential to do the following:

ii) iii)

i) halt such processes; or sequester or remove such material from the processes; or arrange for the preservation of complete and accurate duplicates or copies of such material, suitable for later retrieval if necessary. If CLIENT has a manager of information systems or information technologies, I recommend that you communicate directly with him or her to ensure that all electronic files on CLIENT’s servers are regularly backed up, and that all backup files and any offsite or cloud storage will be maintained and not destroyed during the duration of this litigation. Better yet, please put me in touch with him or her to facilitate this task. Significantly, the duty to preserve extends to materials in the possession, custody, or control not only of CLIENT, but also its employees, agents (such as NAME) or other non-parties who possess such

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materials. CLIENT has an obligation to exercise reasonable efforts to identify and notify such others of this duty. That being said, please also be advised that ESI may exist on employees’ home computers, tablets, on flash drives or Blackberries, iPhones, Android Phones, or other smartphone devices, in a cloud computing infrastructure, on social media sites (such as LinkedIn, Facebook and Twitter), or off-site on a remote server or back-up tapes. We urge you to take all actions necessary to preserve any and all ESI which may be located on such devices. To aid you in this endeavor, I have prepared the attached memorandum for you to send to all persons affiliated with CLIENT who may have potentially relevant materials to advise them of their obligations. I am sorry that this has to be so complicated, but it is part of the current legal environment. Please do not hesitate to contact me to discuss your preservation obligations or to coordinate any search for responsive materials. Very truly yours,

ATTORNEY NAME

f. Disclosure Of Social Media NYCLA Ethics Opinion ADVISING A CLIENT REGARDING POSTS ON SOCIAL MEDIA SITES, NYCLA ETHICS OPINION 745 (JULY 2, 2013) TOPIC: What advice is appropriate to give a client with respect to existing or proposed postings on social media sites. DIGEST: It is the Committee’s opinion that New York attorneys may advise clients as to (1) what they should/should not post on social media, (2) what existing postings they may or may not remove, and (3) the particular implications of social media posts, subject to the same rules, concerns, and principles that apply to giving a client legal advice in other areas including RPC 3.1, 3.3 and 3.4.1 RPC: 4.1, 4.2, 3.1, 3.3, 3.4, 8.4. NB: This opinion is limited to conduct of attorneys in connection with civil matters. Attorneys involved in criminal cases may have different ethical responsibilities.

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After a lengthy introduction, the opinion continued: A number of recent cases have considered the extent to which courts may direct litigants to authorize adverse counsel to access the “private” portions of their social media postings. While a comprehensive review of this evolving body of law is beyond the scope of this opinion, the premise behind such cases is that social media websites may contain materials inconsistent with a party’s litigation posture, and thus may be used for impeachment. The newest cases turn on whether the party seeking such disclosure has laid a sufficient foundation that such impeachment material likely exists or whether the party is engaging in a “fishing expedition” and an invasion of privacy in the hopes of stumbling onto something that may be useful (footnote omitted). Given the growing volume of litigation regarding social media discovery, the question arises whether an attorney may instruct a client who does not have a social media site not to create one: May an attorney pre-screen what a client posts on a social media site? May an attorney properly instruct a client to “take down” certain materials from an existing social media site? Preliminarily, we note that an attorney’s obligation to represent clients competently (RPC 1.1) could, in some circumstances, give rise to an obligation to advise clients, within legal and ethical requirements, concerning what steps to take to mitigate any adverse effects on the clients’ position emanating from the clients’ use of social media. Thus, an attorney may properly review a client’s social media pages, and advise the client that certain materials posted on a social media page may be used against the client for impeachment or similar purposes. In advising a client, attorneys should be mindful of their ethical responsibilities under RPC 3.4. That rule provides that a lawyer shall not “(a)(1) suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce... [nor] (3) conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.” Attorneys’ duties not to suppress or conceal evidence involve questions of substantive law and are therefore outside the purview of an ethics opinion. We do note, however, that applicable state or federal law may make it an offense to destroy material for the purpose of defeating its availability in a pending or reasonably foreseeable proceeding, even if no specific request to reveal or produce evidence has been made. Under principles of substantive law, there may be a duty to preserve “potential evidence” in advance of any request for its discovery. VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 939 N.Y.S. 2d 331 (1st Dep’t 2012) (“Once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data.”); QK Healthcare, Inc., v. Forest Laboratories, Inc., 2013 N.Y. Misc. LEXIS 2008; 2013 N.Y. Slip Op. 31028(U) (Sup. Ct. N.Y. Co., May 8, 2013); RPC 3.4, Comment [2]. Under some circumstances, where litigation is anticipated, a duty to preserve evidence may © 2013 David Paul Horowitz, All Rights Reserved

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arise under substantive law. But provided that such removal does not violate the substantive law regarding destruction or spoliation of evidence, there is no ethical bar to “taking down” such material from social media publications, or prohibiting a client’s attorney from advising the client to do so, particularly inasmuch as the substance of the posting is generally preserved in cyberspace or on the user’s computer. An attorney also has an ethical obligation not to “bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” RPC 3.1(a). Frivolous conduct includes the knowing assertion of “material factual statements that are false.” RPC 3.1(b)(3). Therefore, if a client’s social media posting reveals to an attorney that the client’s lawsuit involves the assertion of material false factual statements, and if proper inquiry of the client does not negate that conclusion, the attorney is ethically prohibited from proffering, supporting or using those false statements. See, also, RPC 3.3; 4.1 (“In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”) Clients are required to testify truthfully at a hearing, deposition, trial, or the like, and a lawyer may not fail to correct a false statement of material fact or offer or use evidence the lawyer knows to be false. RPC 3.3(a)(1); 3.4(a)(4). Thus, a client must answer truthfully (subject to the rules of privilege or other evidentiary objections) if asked whether changes were ever made to a social media site, and the client’s lawyer must take prompt remedial action in the case of any known material false testimony on this subject. RPC 3.3 (a)(3). We further conclude that it is permissible for an attorney to review what a client plans to publish on a social media page in advance of publication, to guide the client appropriately, including formulating a corporate policy on social media usage. Again, the above ethical rules and principles apply: An attorney may not direct or facilitate the client’s publishing of false or misleading information that may be relevant to a claim; an attorney may not participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false. RPC 3.4(a)(4).3 However, a lawyer may counsel the witness to publish truthful information favorable to the lawyer’s client; discuss the significance and implications of social media posts (including their content and advisability); advise the client how social media posts may be received and/or presented by the client’s legal adversaries and advise the client to consider the posts in that light; discuss the possibility that the legal adversary may obtain access to “private” social media pages through court orders or compulsory process; review how the factual context of the posts may affect their perception; review the posts that may be published and those that have already been published; and discuss possible lines of cross-examination.

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CONCLUSION: Lawyers should comply with their ethical duties in dealing with clients’ social media posts. The ethical rules and concepts of fairness to opposing counsel and the court, under RPC 3.3 and 3.4, all apply. An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages, consistent with the principles stated above. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on “private” social media pages, and what may be “taken down” or removed. Defense Verdict In Personal Injury Action With Social Media Evidence In Johnson v. Ingalls,6 plaintiff was injured when she either jumped or fell from a vehicle operated by the defendant. Plaintiff appealed a verdict for the defendant, contending, inter alia, that the trial court erred in admitting into evidence photographs obtained form the plaintiff’s Facebook account, a contention the Third Department rejected: We further reject plaintiff's contention that certain photographs obtained from her Facebook account were unduly prejudicial and improperly admitted into evidence. After an in camera review, Supreme Court excluded the majority of the photographs that defendants proffered as unduly prejudicial, cumulative or insufficiently probative, but permitted use of approximately 20 photos during plaintiff's cross-examination. Plaintiff claimed that, as a result of her injury, she suffered severe anxiety, vertigo, constant migraines and pain for a period of about two years, that her anxiety prevented her from going out or socializing with friends, and that she required antidepressant medication. The photos admitted were taken over a 1 1/2 -year period beginning shortly after the accident. They depicted plaintiff attending parties, socializing and vacationing with friends, dancing, drinking beer in an inverted position referred to in testimony as a “keg stand,” and otherwise appearing to be active, socially engaged and happy. They further revealed that plaintiff consumed alcohol during this period, contrary to medical advice and her reports to her physicians. The discretion of trial courts in rendering evidentiary rulings is broad (citations omitted). The photographs had probative value with regard to plaintiff's claimed injuries, their evidentiary value was properly balanced against their potential for prejudice, and we find no abuse of discretion (citation omitted).7

6 7

2012 NY Slip Op 03492, --- N.Y.S.2d --- (3d Dep’t 2012). Id.

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When plaintiff took the keg stand, I mean witness stand, the cross-examination must have been uncomfortable, to say the least. Johnson serves as a useful reminder that the most damaging wounds in litigation are often those that are self-inflicted. What is surprising is that plaintiff did not withdraw at least some of the damage claims highlighted by the appellate court, which might have obviated the relevance of some of the photos ultimately admitted, particularly in light of the careful balancing test the trial court appears to have applied. Johnson also shows the potential value of social media material for crossexamination, whether directly addressing a claim or defense, or on a collateral issue. However, care must be taken to establish a proper foundation in order for the matter to be discoverable, before the issue of admissibility is addressed. Accordingly, the First Department denied: [A]ccess to plaintiff's social networking accounts, [where] no showing has been made 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).8 The importance of the nature and extent of the in camera review by the trial court cannot be understated. Social Media In Custody Case Matter of Melody M v. Robert M., 103 A.D.3d 932, 962 N.Y.S.2d 364 (3d Dep’t 2013) Father was granted sole legal custody of children, and the court considered, inter alia, Facebook postings by the mother: In making its determination, Family Court noted the pattern of inappropriate behavior by the mother and its effect on the parties' oldest child, who has mental health issues and receives counseling. The mother does not participate in the child's counseling because she does not like the therapist or agree with the 8

Abrams v. Pecile, 83 A.D.3d 527, 922 N.Y.S.2d 16 (1st Dep’t 2011).

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recommendation that the child needs structure and should follow the same routine in both households. The mother also testified that she frequently calls the father for him to take the oldest child away during her parenting time because she cannot deal with his behavior. The mother admitted that she swears and yells at the oldest child, often resorting to physical means to deal with him. In addition, she utilized Facebook to insult and demean the child, who was then 10 years old, by, among other things, calling him an "asshole." She testified without remorse that she did so because that is what "[h]e is," and she thought it was important for her Facebook friends to know this. Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child. Recent Case Developments Richards v. Hertz, Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 (2d Dep’t 2012) Plaintiff alleged that as a result of the automobile accident her ability to play sports was impaired and pain was present which was exacerbated in cold weather. Court held defendants, by demonstrating that plaintiff had posted on her personal webpage on Facebook pictures of herself skiing which post dated automobile accident, made sufficient showing that portion of plaintiff’s webpage that was blocked by privacy setting might contain other evidence relevant to defense of lawsuit, and that allowing defendant access to this portion of plaintiff’s webpage was reasonably calculated to lead to discovery of relevant information. However, due to likely presence on that portion of webpage blocked by privacy setting of material of private nature that was not relevant to lawsuit, Court held trial court had to conduct an in camera inspection of all status reports, e-mails, photographs, and videos posted on webpage since date of accident to determine which of those materials, if any, were relevant to her alleged injuries. Kregg v. Maldonado, 98 A.D.3d 1289, 951 N.Y.S.2d 301 (4th Dep’t 2012) Court held in this motorcycle accident action that D’s discovery of all social media account records concerning plaintiff’s son (the injured party) was overbroad. It noted that request for access to accounts was made without factual predicate with respect to © 2013 David Paul Horowitz, All Rights Reserved

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relevancy of the evidence, as there was no contention that information in accounts contradicted P’s claims for diminution of enjoyment of life. Bianco v. North Fork Bank Corporation, 2012 N.Y. Slip Op. 32611 (Supreme Court New York Cty.) (Ling-Cohan, J.) Finding a sufficient factual showing that defendant’s were entitled to access to plaintiff’s Facebook account, Court appointed a Special Referee in accordance with CPLR 3104 to make an in camera review of the account to determine what, if any, of its contents should be disclosed. Tapp v. New York State Urban Dev. Corp., 2012 NY Slip Op 00547 (1st Dep’t 2013) In a personal injury action, the trial court denied the defendants' motion to compel an authorization for plaintiff's Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived, and the First Department unanimously affirmed: The motion court correctly determined that plaintiff's mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account's usage. To 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" (citations omitted). Defendants failed to identify relevant information. Defendants' argument that plaintiff's Facebook postings "may reveal daily activities that contradict or conflict with" plaintiff's claim of disability amounts to nothing more than a request for permission to conduct a "fishing expedition" (citations omitted). Nieves v. 30 Ellwood Realty LLC, 2013 NY Slip Op 23128 (App. Term, 1st Dep’t 2013) The infant plaintiff claims damages for physical and psychological injuries, including the inability to engage in social activities, anxiety, depression, and posttraumatic stress disorder. Defendant demonstrated that plaintiff's Facebook profile contained photographs that were probative of the issue of the extent of her alleged injuries, and it is reasonable to believe that other portions of her Facebook © 2013 David Paul Horowitz, All Rights Reserved

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records may contain further evidence relevant to that issue (citations omitted). In these circumstances, and since "it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action" (citations omitted), the appropriate course is to remand the matter for an in camera inspection of plaintiff's Facebook records, to determine which of those records, if any, are relevant to plaintiff's alleged injuries. To the extent that a thorough in camera inspection may prove unduly burdensome, the trial court retains broad discretion to set reasonable terms and conditions thereon (citations omitted), including the right to direct plaintiff to conduct an initial review of her own Facebook account, and limit the in camera inspection to items whose discoverability is contested by plaintiff (citation omitted). Trial Court Applies Relevant Case Law & Order Disclosure Winchell v. Lopiccolo, 2012 NY Slip 22337 (Supreme Court, Orange Cty. 2012) In a personal injury action, plaintiff alleged in her Bill of Particulars that she suffered various injuries, including physical injury and "mild traumatic brain injury," "blunt facial and head trauma," "persistent ecchymosis in the forehead," "impaired cognitive functioning," "cerebral dysfunction," "motor organization deficit," "memory impairments" and "difficulty concentrating." Defendant served disclosure demands for plaintiff’s social media: Defendants served Plaintiff with a Notice to Produce, demanding the following: (1) a copy of a film in which Plaintiff appeared; (2) a videotape of a beauty pageant in which Plaintiff participated; (3) authorization for access to Plaintiff's Facebook page; (4) photographs of Plaintiff at her junior prom; (5) photographs of Plaintiff at her boyfriend/fiance's senior prom; (6) all reviews that mention Plaintiff as a performer; (7) the Playbill for the production "Brighton Beach Memoirs" in which Plaintiff performed one of the acting roles; (8) the name and address of the director of "Brighton Beach Memoirs"; and (9) authorization for access to Plaintiff's employment records. Plaintiff objected to these demands and the instant motion followed. In their motion papers, Defendants narrow the scope of their Request Nos. 4 and 5 to only those photographs that are representative of Plaintiff's appearance at the two proms. Defendants withdraw Request No. 9. In her opposition papers, Plaintiff provides responses to Request Nos. 1, 2, 6, 7, 8, 9, and 10. With regard to Request Nos. 1 and 2, Plaintiff asserts that she does not have possession or control of the film in which she appeared, and she does not © 2013 David Paul Horowitz, All Rights Reserved

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believe that a videotape was made of the beauty pageant. With regard to reviews of her performance sought in Request No. 6, Plaintiff states that she is not aware that any exist. Plaintiff attaches a copy of the Playbill for "Brighton Beach Memoirs" in response to Request Nos. 7 and 9 (which was withdrawn). In response to Request No. 8, Plaintiff provides the information that she is able to recall. Finally, with regard to Request No. 10, Plaintiff asserts that she already provided Defendants with the authorization for her employment records. In their reply papers, Defendants do not address Plaintiff's responses to the above Requests, focusing instead on Request No. 3, which seeks the Facebook authorization. The Court interprets Defendants' lack of specific objection to any of Plaintiff's responses to Request Nos. 1, 2, and 6 through 10 as a further narrowing of the scope of the parties' dispute to only Request No. 3 for the Facebook authorization and Request Nos. 4 and 5 for the prom photographs. The Court addressed only Requests Nos. 3 through 5: Defendants request authorization to access Plaintiff's Facebook page for the purpose of discovering what it reveals about Plaintiff's "ability to portray cognitive function." See Notice of Motion, Affirmation of Betsy N. Garrison at ¶ 11. Defendants further clarify their request as follows: "the layout of her Facebook page would demonstrate cognitive function inasmuch as the layout of a Facebook page calls for creativity of some sort as well as thought in providing captions for photographs, narrative posts written by the plaintiff as well as her ability to write and comment. Writings on the page would be direct and circumstantial evidence of her claims. Moreover, lucid and logical writing or a lack thereof, would be useful in the defense and/or assessment of this case." Id. Defendants attempt to refine the purpose of their Request even further in their reply papers, contending that the manner in which Plaintiff uses her Facebook page, including photo layouts and captions, expressiveness of language and lucidity of her statements will illuminate the nature and extent of her claimed neurological and psychological injury. Plaintiff strenuously opposes access to her Facebook page and asserts that Defendants have not demonstrated any factual predicate for their request to have "unfettered access" to her personal information. Moreover, Plaintiff contends it is unreasonable to use the contents of her Facebook page as an indicator of her cognitive functioning. She asserts that her cognitive functioning is far more credibly represented by her high school and college transcripts, which have already been provided to Defendants. To the extent that her Facebook page contains photographs of her at the prom, performing in a play, or participating in a beauty pageant and postings related to any of those events, such information is cumulative and unnecessary given her admission that she participated in all of these events. © 2013 David Paul Horowitz, All Rights Reserved

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After discussing the dearth of case law, the court noted “[d]iscovery in this area is nonetheless governed by the same legal principles that guide more traditional forms of discovery and, as one court put it, "digital fishing expeditions' are no less objectionable than their analog antecedents." (Citation omitted). The party demanding access to social networking accounts must show that the method of discovery will lead to "the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information that bears on the claims." (citation omitted). The requesting party must "establish a factual predicate with respect to the relevancy of the evidence." (citation omitted). The Court is troubled by the breadth of Defendants' Request for authorization for Plaintiff's Facebook page because it seeks unrestricted access. While the Court recognizes Defendants' attempt to establish a factual predicate for their request, the fact is that every bit of information Plaintiff enters onto her Facebook page demonstrates some level of cognitive functioning. This Court's review of reported decisions in this area has not disclosed any instance where such unfettered access was allowed, unless the requesting party first showed that information on the other party's public page contradicted their claims of injury or damages. (Citation and case quote omitted). Defendants have not made that contention here. They hope to discover such information in their search. Defendants cannot point to anything concrete. Instead, they hope to divine the extent of Plaintiff's cognitive injuries from reading every bit of information on her Facebook page. The Court finds that Defendants' Request for unrestricted access to Plaintiff's Facebook page is overbroad. (Citations omitted). In addition to the cases cited, the Court finds persuasive the reasoning of a federal case addressing the same issue of access to a Facebook account in a somewhat analogous situation where the party's claims involved damage to her mental and emotional health. (Citation omitted). As the court there stated, "[a]lthough ... the contours of social communications relevant to a claimant's mental and emotional health are difficult to define, that does not mean that everything must be disclosed." (citation omitted). While "anything that a person says or does might in some theoretical sense be reflective of her emotional state," it does not justify "requiring the production of every thought she may have reduced to writing, or, indeed, the deposition of everyone she may have talked to." (Citation omitted). Similarly, "the contours of social communications relevant to" Plaintiff's cognitive functioning are hard to define but do not justify the blanket disclosure that Defendants request. "[I]t must be the substance of the communication that determines relevance." (Citation omitted). For example, if Plaintiff posted a message on Facebook saying that she has difficulty formulating the words to express her thoughts, the substance of the © 2013 David Paul Horowitz, All Rights Reserved

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message is what should be considered to determine whether the message is relevant. Beyond that, once Plaintiff formulates a message, the message itself may not reflect the effort expended in its formulation if the substance of the message does not contain any reference to that process. Even Plaintiff's use of language and her ideas may be more reflective of her choice of expression rather than her ability. Furthermore, as Plaintiff contends, to the extent that she has provided more reliable indicators of her cognitive abilities, Defendants have made no showing that their request is not cumulative. Accordingly, the Court denies that portion of Defendants' motion to compel access to Plaintiff's Facebook page, without prejudice to service of a more narrowly-tailored discovery demand. The court ordered disclosure of the prom photographs. Motions For Disclosure Of Social Media Accounts Denied, With Leave To Renew Pending Completion Of Depositions Of Parties; Court Discusses Onerous Nature Of In Camera Reviews Fawcett v. Altieri, 2013 NY Slip Op 23010 (Supreme Court, Richmond Cty., Justice Joseph J. Maltese 2013) After a lengthy analysis of relevant case law, as well as a discussion of Facebook privacy settings, Justice Maltese denied, with leave to renew, the parties request for social media disclosure pending completion of the relevant depositions: Electronic discovery issues were once nearly the exclusive province of commercial litigation involving corporate players. However, with the expansion of the use of mobile phones that are connected to the Internet, and the overall ease of access to broadband Internet connections at home, electronic discovery will quickly enter into actions where it was once thought irrelevant. Facebook's Mark Zuckerberg is correct that members of society continue to share more of their thoughts, secrets, mundane musings, photos and videos of their personal lives on social media sites. Perhaps this phenomenon is driven by feelings of anonymity in the online environment, where social media giants perpetuate the mantra that "your privacy is important." (Footnote omitted). But, as courts have previously determined this privacy is not absolute. Information posted in open on social media accounts are freely discoverable and do not require court orders to disclose them. However, this court will not go so far as to hold that all social media records are material and necessary based solely on the fact that many people avail themselves to these social media sites. In order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of © 2013 David Paul Horowitz, All Rights Reserved

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the case at hand. The courts should not accommodate blanket searches for any kind of information or photos to impeach a person's character, which may be embarrassing, but are irrelevant to the facts of the case at hand. The party requesting the discovery of an adversary's restricted social media accounts should first demonstrate a good faith basis to make the request. Absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant's social media records is tantamount to a costly, time consuming "fishing expedition," which the courts ought not condone. Moreover, asking courts to review hundreds of transmissions "in camera" should not be the all purpose solution to protect the rights of litigants. Courts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim. While several courts have frequently assigned the "in camera" review to "special masters," the fees to be paid those special masters should be paid by the party seeking such discovery in a tort case, but which may be shared by the parties in a commercial or matrimonial matter. With the volume of cases pending before our courts, simply requesting authorizations for all social media from all or most of the litigants will create an unmanageable volume of documents to be reviewed in the hope that some information directly relevant to the case will be uncovered. More likely, the information obtained would be irrelevant to the actual facts of the case, but may be used in an attempt to discredit the adversary with collateral matters. As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand. Therefore, the parties should proceed to discover the facts of the case by way of depositions or other investigatory or surveillance means.

h. Trade Secrets & Electronic Disclosure In MSCI Inc. v. Financial Engineering Associates, Inc.,9 an action for misappropriation of trade secrets, disclosure centered on computer source codes and their components and sequencing. The trial court reviewed letter briefs on the issue of:

9

2012 NY Slip Op 22110, 2012 N.Y. Misc. LEXIS 1852 (Supreme Court, New York Cty. 2012).

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"[W]hether the plaintiff has to affirmatively identify its trade secrets at this juncture or is it sufficient to identify the components [of the source codes] not claimed to be trade secrets." The court had previously made a ruling on the issue, early in the discovery process. The issue arose at a discovery conference and was not briefed. That ruling is the subject of the letters.10 1

After examining the positions advanced by the parties, the trial court held: Here, plaintiffs' misappropriation claim alleges a number of different trade secrets beyond its compilation theory. Plaintiffs who have brought this action, bear the burden of proving their allegations. Merely providing defendants with plaintiffs' "reference library" to establish what portions of their source code are in the public domain shifts the burden to defendants to clarify plaintiffs' claim. (Citations and parentheticals omitted). Additionally, the disclosure does not enlighten either defendants or the court as to what sequencing of publicly known components or licensed components, are trade secrets. Hence, it is insufficient. Moreover, it would be unfair to allow plaintiffs to discover Axioma's trade secrets prior to revealing their own. Should defendants remain in the dark as to the explicit portions of the source codes that plaintiffs deem to be trade secrets misappropriated by defendants, plaintiffs, once privy to Axioma's source codes, could tailor their theory of misappropriation to Axioma's work. Indeed, Axioma's work could be misappropriated. For this reason, plaintiffs are precluded from seeking further discovery from defendants until they identify, with reasonable particularity, which of the component parts or sequencing of their source code are not (1) publicly available information, (2) commonly-used algorithms, or (3) third-party licensing. Plaintiffs shall further supplement its "paths not taken" response to defendants' interrogatory requests.11 The trial court concluded with mention of the potential costs involved: The court is not insensitive to the costs of its order. However, discovery in this age of electronically stored information and, thus litigation, has become an exceedingly expensive venture. This is even more the case, when the subject of the action is computer software and programming.12

10

Id. Id. 12 Id. 11

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i. Cell Phone Records Neuman v. Frank, 82 A.D.3d 1642,919 N.Y.S.2d 644 (4th Dep't 2011) In this legal malpractice action, court held trial court abused its discretion in ordering D's attorney to disclose his unrelated cell phone records for a 3-year period without first submitting those records to the court for an in camera review to determine which calls were relevant; and to protect confidentiality of D's other clients. Dixon-Gales v. Brooklyn Hosp. Ctr., 35 Misc.3d 676,941 N.Y.S.2d 468 (Sup. Ct. Kings Co. 2012) (Sup. Ct., Kings County 2012) In a medical malpractice action, Court held D's doctor was not entitled to a protective order preventing full disclosure of his telephone records, as the timing of certain phone calls between him and another doctor were relevant to both the prosecution and defense of the action. CPLR 3101 ( a) mandates disclosure of all matter material and necessary in the prosecution or defense of an action, a standard that is interpreted liberally to require disclosure, upon request, of any material that will assist in trial preparation. Here, in the interest of privacy, a protective order directed D to submit home and cell phone records for the relevant date and time only for in camera inspection, with the relevant phone numbers indicated. The records were to be redacted as appropriate before provided to the other parties.

j. San Diego County Bar Legal Ethics Committee, Legal Ethics Opinion 2011-2. Opinion 2011-2 of the San Diego County Bar Legal Ethics Committee addressed the following scenario: Attorney is representing Client, a plaintiff former employee in a wrongful discharge action. While the matter is in its early stages, Attorney has by now received former employer’s answer to the complaint and therefore knows that the former employer is represented by counsel and who that counsel is. Attorney © 2013 David Paul Horowitz, All Rights Reserved

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obtained from Client a list of all of Client’s former employer’s employees. Attorney sends out a “friending” request to two high-ranking company employees whom Client has identified as being dissatisfied with the employer and therefore likely to make disparaging comments about the employer on their social media page. The friend request gives only Attorney’s name. Attorney is concerned that those employees, out of concern for their jobs, may not be as forthcoming with their opinions in depositions and intends to use any relevant information he obtains from these social media sites to advance the interests of Client in the litigation. The Opinion interprets California Rule of Professional Conduct 2-100, which is the parallel provision to New York Rules of Professional Conduct, Rule 4.2 (emphasis added). As to the threshold question of whether the high-ranking employees of the represented corporate adversary are “parties” for purposes of Rule 2-100, the Opinion cited to California caselaw and noted that “the term ‘high-ranking employee’ suggests that these employees ‘exercise substantial discretionary authority over decisions that determine organizational policy’ and therefore should be treated as part of the represented corporate party for purposes of Rule 2100.” The Opinion cautioned that “at minimum, the attorney should probe his client closely about the functions these employees actually perform for the company-adversary before treating those high-ranking employees as unrepresented persons.” Next, the Committee considered whether a friend request is a direct or indirect communication by the attorney to the represented party “about the subject of the representation” within the meaning of Rule 2-100. According to the Opinion, “[w]hen a Facebook user clicks on the ‘Add as Friend’ button next to a person’s name without adding a personal message, Facebook sends a message to the would-be friend that reads: ‘[Name] wants to be friends with you on Facebook.’” The requesting party may also edit the form request to friend to include additional information, such as information about how the requester knows the recipient or why the request is being made. The recipient may also send a message to the requester asking for further information about the requester before deciding whether to accept the sender as a friend. The Opinion concludes that a friend request generated by Facebook, and not the attorney, “is at least an indirect ex parte communication with a represented party for purposes of Rule 2-100(A).” As to the “harder question” of whether the statement Facebook uses to alert the represented party to the attorney’s friend request is a communication “about the subject of the representation,” the Opinion concludes that “the context in which that statement is made and the attorney’s motive in making it matter” is determinative. In short, “[i]f the communication to the represented party is motivated by the quest for information about the subject

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of the representation, the communication with the represented party is about the subject matter of that representation.” The Committee also concluded that “the attorney in this scenario also violates his ethical duty not to deceive by making a friend request to a represented party’s Facebook page without disclosing why the request is being made.” See New York Rules of Professional Conduct, Rule 4.1(a) (“In the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person. . . .”); Rule 8.4(c) (prohibiting a lawyer from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation”). The Committee discussed two recent ethics opinions on the subject, which appear to reach contrary conclusions. In Formal Opinion 2010-02, the New York City Bar Association’s Committee on Professional and Judicial Ethics considered whether “a lawyer, either directly or through an agent, [may] contact an unrepresented person through a social networking website and request permission to access her web page to obtain information for use in litigation.” This Opinion relied, in part, on the New York Court of Appeals repeated statements stressing the importance of informal discovery in litigation, and concluded that “an attorney or her agent may use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request.” Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02 (2009), discussed above, appeared to reach a contrary conclusion in noting that the proposed “friending” by a third party would constitute deception in violation of Rules 8.4 and 4.1, and would constitute a supervisory violation under Rule 5.3 because the third party would omit a material fact, i.e., that the third party would be seeking access to the witness’s social networking pages solely to obtain information for the lawyer to use in the pending lawsuit. The San Diego County Bar Legal Ethics Committee concluded: We agree with the scope of the duty set forth in the Philadelphia Bar Association opinion, notwithstanding the value in informal discovery on which the City of New York Bar Association focused. Even where an attorney may overcome other ethical objections to sending a friend request, the attorney should not send such a request to someone involved in the matter for which he has been retained without disclosing his affiliation and the purpose for the request.

l. NYSBA Ethics Opinions Maintaining Confidentiality Where Lawyers Share Office Space & Computers New York State Bar Association Committee on Professional Ethics Opinion 939 (10/16/12) © 2013 David Paul Horowitz, All Rights Reserved

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Topic: Maintaining confidentiality of client information as between independent lawyers sharing office space and computer Digest: Independent lawyers sharing office space may share computer for clientrelated information if they exercise reasonable care to assure that confidential information is not disclosed Rules: 1.6(a) & (c) FACTS 1. Two private lawyers share space, but are not partners or otherwise practicing as one firm. They share one computer, as to which they have separate administrative passwords not known to each other. They maintain separate paper files. QUESTION 2. May private lawyers who share space also share a computer for confidential, client-related information where they have separate administrative passwords to the computer that are not known to each other? OPINION 3. Rule 1.6(a) of the Rules of Professional Conduct states: “A lawyer shall not knowingly reveal confidential information,” with exceptions not relevant to the issue presented. Rule 1.6(c) provides, also subject to an exception not relevant here: “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 ....” 4. A lawyer’s duty of reasonable care is not limited to overseeing the conduct of others. The lawyer must also take reasonable care to avoid improper disclosure by the lawyer himself or herself.[1] In addition to whatever support for that broader duty may be found in the text of Rule 1.6, support from other sources has been cited by some ethics opinions. See A.B.A. 11-459 (citing Rule 1.1(a), which calls for a lawyer to provide competent representation to a client, and stating that “a lawyer must act competently to protect the confidentiality of clients’ information”); N.Y. City 1994-11 (stating that a duty to preserve client confidences and secrets “inheres in the fiduciary relationship between lawyer and client”). 5. When a lawyer uses a particular technology to store or transmit confidential information, the degree of care that is required may depend on factors such as the security of that technology and the sensitivity of the information. If the technology, taking into account legal as well as technological safeguards, does not provide a reasonable expectation that confidentiality will be protected; if circumstances put the lawyer on notice of a heightened risk that confidentiality © 2013 David Paul Horowitz, All Rights Reserved

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may be compromised; or if the information is extraordinarily sensitive, then further security measures may be required. See Rule 1.6 Cmt. [17]; N.Y. State 842; N.Y. State 709; A.B.A. 11-459. The lawyer, upon considering such factors, must take reasonable precautions to ensure privacy. 6. The facts provided by the inquirer are insufficient to resolve whether the proposed shared computer can be used for client-related information without violating the duty of reasonable care to protect confidentiality. The fact that the lawyers have separate computer passwords is certainly an appropriate precaution. Whether it is sufficient would depend on further factors. Some password systems may be more resistant to unauthorized access than others. Protection of the password is also important; for example, a password kept on a piece of paper stuck to the computer and readily visible to any user does not provide much protection. On the other hand, if a robust password system provides a degree of protection similar to that of locked file cabinets, then its proper and consistent use may well constitute reasonable care. Admittedly there could be some risk of extraordinary efforts to hack into even a well-secured computer, or to steal it from the premises for more leisurely hacking, just as there could be a risk that file cabinets could be broken into or removed. The lawyer’s obligation, however, is not to guarantee preservation of confidentiality at all costs; it is to protect confidentiality by taking reasonable care. CONCLUSION 7. Lawyers practicing as sole practitioners but sharing space may share a computer to store and process client confidential information, but only if, under the actual circumstances relating to the computer, including its software and passwords and their use, the lawyers take reasonable precautions to ensure that the privacy of the confidential information is protected. [1] Rule 1.6, Cmt. [17] (when transmitting a communication relating to representation of a client, “the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients”); N.Y. State 842 ¶4 (2010) (a lawyer must “take reasonable care to affirmatively protect a client’s confidential information”); N.Y. State 709 (1998) (“an attorney has a duty to use reasonable care to protect client confidences and secrets”); N.Y. County 733 (2004) (attorney “must diligently preserve the client’s confidences”); N.Y. City 1994-11 (lawyer who possesses client confidences and secrets must take reasonable steps to secure the information against misuse or inappropriate disclosure).

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Off-Site Back-Up, Retention Of Paper Files & Confidentiality New York State Bar Association Committee on Professional Ethics Opinion 940 (10/16/12) Topic: Use of off-site backup tapes to store a client’s confidential information; retention of files in original paper form Digest: Lawyer may store confidential information on off-site backup tapes if lawyer takes reasonable care to ensure adequacy of systems to protect confidentiality. When records must be retained, nature of the records determines whether lawyer (i) must maintain originals, (ii) may discard originals and maintain electronic copies in particular formats, or (iii) may maintain electronic copies in any format. Rules: 1.6(a) & (c), 1.15(d) FACTS 1. The inquiring attorney’s firm scans all documents and makes them part of an electronic case management system. The electronic data is backed up daily on tapes, and the tapes are stored outside of the firm’s office. Thus, in the event of a catastrophic loss to the office building or server, no more than a single day’s data would be lost. The inquiry does not describe the entity that will handle the off-premise storage of the backup tapes, but it is presumably a commercial service provider rather than the firm itself. QUESTIONS 2. May an attorney use a tape backup system to store a client’s confidential information away from the firm’s premises? 3. When the New York Rules of Professional Conduct (the “Rules”) obligate an attorney to maintain certain records, may the attorney satisfy that obligation by keeping electronic copies such as backup tapes, or is the attorney required to keep the paper originals? OPINION A. Tape Backup Systems 4. The Rules address not only intentional disclosures of confidential information by a lawyer but also the exercise of reasonable care to avoid such disclosures by others. Rule 1.6(a) provides that, subject to certain exceptions, a lawyer “shall not knowingly reveal confidential information.” Rule 1.6(c) © 2013 David Paul Horowitz, All Rights Reserved

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provides that 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 for certain disclosures authorized by the rule. [1] 5. We previously addressed a related inquiry. The question in N.Y. State 842 (2010) was whether a lawyer could use internet server (“cloud”) storage to store and back up confidential information. In that opinion, the Committee opined that such use is permissible “provided that the lawyer takes reasonable care to ensure that the system is secure and that client confidentiality will be maintained.” The opinion gave several examples of steps that a lawyer might take to exercise such care. 6. We believe the principles governing use of a “cloud” storage system would also govern use of backup tapes maintained away from the firm’s premises. A lawyer may use such backup tapes to store client information if the lawyer exercises reasonable care to protect the confidentiality of that information.[2] 7. Opinion 842’s examples of conduct bearing on reasonable care are also relevant to use of backup tapes. Thus, for example, it may be appropriate for the lawyer to: A. Ensure that the provider maintaining the backup tapes “has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information”; and B. Investigate the provider’s “data storage security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances.” N.Y. State 842. B.

May a Lawyer Satisfy Retention Requirements With Electronic Copies?

8. In asking the second question, the inquirer references the ethical requirement that certain kinds of records be maintained “for seven years after the events that they record.” This includes, for example, records of certain bank accounts, copies of retainer agreements, copies of bills to clients, copies of closing statements, and all checkbooks and bank statements. Rule 1.15(d)(1). 9. For most kinds of records listed in Rule 1.15(d)(1), it suffices under the terms of that Rule to keep “copies” of those records. However, for the records listed in Rule 1.15(d)(1)(viii) – namely, “checkbooks and check stubs, bank statements, prenumbered canceled checks and duplicate deposit slips” – it is necessary to maintain the records in their original form for the required seven years. This does not mean, however, that a lawyer must use a bank that routinely © 2013 David Paul Horowitz, All Rights Reserved

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returns paper copies of cancelled checks, or must pay an extra charge to obtain paper copies. In N.Y. State 758 (2002), we said: “If these items are returned to the lawyer in paper form by the lawyer’s bank in the ordinary course of business, the lawyer should retain them in that form. However, the lawyer is not required to undertake extraordinary effort or incur extra expense to obtain these items in paper form.” 10. Thus, lawyers need not obtain original cancelled checks just to satisfy the retention rule. Rather, lawyers must preserve cancelled checks and the other items listed in Rule 1.15(d)(1) in whatever form the law firm receives or initially maintains these items in the ordinary course of business. See generally Roy D. Simon, Simon’s New York Rules of Professional Conduct Annotated 617-18 (2012 ed.). 11. For the documents that may be kept as copies, the Rule provides further guidance. Requirements of maintaining copies are satisfied by maintaining “original records, photocopies, microfilm, optical imaging, and any other medium that preserves an image of the document that cannot be altered without detection.” Rule 1.15(d)(3). Whether a particular storage format meets this standard may not be obvious, in which case consultation with an information technology specialist may be appropriate. See Simon’s New York Rules of Professional Conduct Annotated 619 (2012 ed.). 12. The answer to the inquirer’s question thus depends on the kinds of record involved. It will not suffice to keep electronic copies of certain paper records like checkbooks, bank statements, and deposit slips when they are originally received or maintained by the law firm in paper form. Those must be kept in their original paper form. As to other kinds of records, for which Rule 1.15(d)(1) requires only the keeping of copies, those copies may be kept electronically, but only in a format that preserves an image that cannot be altered without detection, per Rule 1.15(d)(3). 13. A lawyer may also be ethically obligated to preserve various records other than those records subject to the seven-year retention requirement imposed by Rule 1.15. See, e.g., N.Y. State 623 (1991) (opining that documents in closed files may be destroyed unless there are legal preservation requirements or “extraordinary circumstances manifesting a client’s clear and present need”); N.Y. State 460 (1977) (opining that absent legal requirement to preserve records or specific instructions from client, retention period may be determined on basis of client’s foreseeable need); N.Y. City 2010-1. Other obligations may be imposed by law or court rule. See, e.g., N.Y. State 460 (1977); N.Y. City 2010-1; 22 NYCRR § 603.7 (1st Dep’t rule requiring lawyers to preserve specified records in personal injury cases). Whether retention of electronic copies would satisfy these various obligations outside Rule 1.15 will again depend on the kind of record involved.

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14. For example, it may be necessary to preserve the originals of documents such as wills, deeds, contracts, and promissory notes. See N.Y. City 2010-1. For other kinds of documents subject to preservation obligations, it may suffice to keep copies if “the legal effect or evidentiary value of such records is not thereby impaired,” because, for example, the copies “may be introduced into evidence or otherwise used in place of the originals” if the need should arise. See N.Y. State 460 (1977); N.Y. County 624 (1974). In still other cases, there may an obligation to keep records based on foreseeable client need, yet that need would be only for the information in those records, and not for the records themselves. In such a case there would be no ethical constraints on the form in which electronic copies are kept. CONCLUSION 15. A lawyer may use off-site backup tapes to store confidential client information if the lawyer takes reasonable care to ensure that the storage system, and the arrangements for its use, adequately protect the confidentiality of such information. 16. For certain kinds of records, the Rules require that original paper documents be kept if the lawyer receives or initially maintains paper originals in the ordinary course of business. For certain other kinds of records, the Rules require retention but permit a lawyer to keep electronic copies in lieu of paper originals if the electronic copies are in a format that preserves an image not subject to alteration without detection. For yet other kinds of records that must be retained, the Rules permit electronic copies to be kept in lieu of paper originals without restriction. [1] Some opinions also address whether a duty of reasonable care to protect confidential information applies to a lawyer’s conduct in general. See, e.g., N.Y. State 842 (2010) ¶4 (citing opinions); N.Y. State 709 (1998). We need not address that topic here, because the inquiring lawyer will be entrusting the tapes to others rather than maintaining them personally. [2] Indeed, given proper safeguards, use of an off-site backup system may be not just permissible but advisable for those lawyers who choose to maintain their records in electronic form. The primary, on-site storage system may have vulnerabilities that a backup system could help mitigate. See Roy D. Simon, Simon’s New York Rules of Professional Conduct Annotated 619 (2012 ed.) (“Disciplinary authorities are not likely to be sympathetic if records disappear because of a computer malfunction.”).

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Storing Client Mail Electronically; Exceptions New York State Bar Association Committee on Professional Ethics Opinion 950 (12/17/12) Topic: Saving law firm mail in paper or electronic form Digest: Law firm that retains electronic copies of mail may destroy the original paper mail, except when it finds that particular items must be retained in paper form, if it follows reliable procedures to identify and retain those particular items. Rules: 1.6, 1.15(d) FACTS 1. The inquirer is a legal services agency that provides services to members of a union. The Agency is located within the headquarters of the Union. 2. Mail received by either the Agency or the Union is received and processed by a third party vendor. The Agency has confidentiality agreements with the personnel of the Vendor who receive and process mail. 3. The Agency proposes to have the Vendor scan all mail and email it to the appropriate attorneys or other legal service personnel. Also, in some cases, the original “hard copy” of the mail would “automatically” be sent to the addressee. According to the inquiry, this would include documents “for which an original is required,” such as “motions, deeds, all client original signature documents, checks, transcripts, title documents [and] all escrow account statements and related documents.” 4. In other cases, the Vendor would retain the hard copy of the mail for one month. During that time, lawyers or other legal staff who receive the emailed scan of the mail may click on the item and thereby cause the Vendor to deliver the hard copy of that mail item to the addressee. After one month, if no legal staff has requested retention, the Vendor would destroy the hard copy of the mail in a secure manner, but the scanned copy would be maintained on a secure server indefinitely. QUESTIONS 5. May the Agency ethically implement a plan to destroy the hard copy originals of certain items of mail, and retain only electronic copies, when legal staff has not requested that the hard copies of those particular items be delivered so as to allow retention?

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OPINION 6. Before considering the question asked, we note briefly the issue of confidentiality. “A fundamental principle in the client-lawyer relationship” is that, in the absence of the client’s informed consent or except as permitted or required by the Rules of Professional Conduct (the “Rules”), “the lawyer must not knowingly reveal information gained during and related to the representation, whatever its source.” Rule 1.6, Cmt. [2]. The attorney not only has an obligation to refrain from revealing such information, but also must exercise reasonable care to prevent its disclosure or use by “the lawyer’s employees, associates, and others whose services are utilized by the lawyer.” Rule 1.6(c); see also Rule 5.3(b) (specifying when a lawyer is responsible for conduct of an associated nonlawyer that would be a violation of the Rules if engaged in by a lawyer). 7. The employees of the Vendor will have access to confidential client information. We have not been given the details of the Agency’s confidentiality agreements with personnel of the Vendor. We may point out, however, that those agreements, and the Agency’s oversight over the Vendor’s adherence to them, must be sufficient to constitute reasonable care in protecting confidential information. 8. The inquiry also does not provide details about the servers on which electronic copies of mail will be kept, and in particular does not indicate whether those servers would be maintained by the Vendor or the Agency. In any event, the Agency must exercise “reasonable care to ensure that the system is secure and that client confidentiality will be maintained,” N.Y. State 842 (2010), and some of our opinions provide guidance as to how such care might be exercised.[1] 9. We now turn to the question about destroying hard copies of mail items. In a recent opinion, we discussed ethical requirements to retain documents in their original form. N.Y. State 940 (2012). That opinion was not focused on items of mail; it related to records in general, and we think its principles apply in the more specific context presented here. Items that must be retained in their original form 10. The inquirer has recognized that certain mail items need to be retained in their original hard copy form. This includes certain items specifically listed in the Rules, such as bank statements, when those items were received as paper copies in the first place. Rule 1.15(d)(1)(viii). It includes other kinds of documents as well, such as promissory notes and deeds. See N.Y. State 940 ¶¶ 9 – 10 & 13 – 14 (2012) (noting that whether records must be maintained in their original form will depend on the kind of record involved, and giving examples of documents in this category). 11. The proposed system includes two mechanisms for ensuring that mail is retained in hard copy when necessary. First, the Vendor would “automatically” © 2013 David Paul Horowitz, All Rights Reserved

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send relevant legal staff hard copies of mail “for which an original is required.” Second, if the Vendor fails to identify such a document, there would be another opportunity to do so when the relevant legal staff reviews the email with the scanned document. 12. The adequacy of these two mechanisms would depend on the details of their design and implementation. It is unclear from the inquiry how the Vendor will identify mail for which an original is required. To the extent possible, the Agency should have a clear and reliable protocol that the Vendor can readily apply, but the inquiry does not describe any such protocol. 13. The inquiry also does not provide full details about the thirty-day opportunity for review by legal staff. It does not indicate, for example, whether there would be any mechanism for extension of the period, or review by another lawyer, when an assigned lawyer is on vacation or fully occupied with some other matter. In the absence of more information about the two mechanisms and their reliability, we cannot opine on the proposed system’s adequacy. Items for which at least copies must be retained 14. As to some other mail items, there will be no ethical requirement to maintain the items in their original paper form, but the inquirer will be ethically required to retain at least copies. N.Y. State 940 ¶¶ 11 – 14 (2012). The proposed system, which includes a plan to keep electronic copies of all mail on a secure server indefinitely, should satisfy this requirement. In some cases, however, there may be constraints on the kind of electronic storage used.[2] CONCLUSION 15. A system for retaining hard copies of mail when necessary, and keeping only electronic copies in other cases, may be permissible if the firm implements a reliable method for identifying those items that it is ethically required to be maintained in hard copy. [1] For example, the opinion cited above states in the context of internet server (“cloud”) storage that reasonable care to protect a client’s confidential information against unauthorized disclosure may include consideration of the following steps: “Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information”; “Investigating the online data storage provider's security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances”; and “Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.” N.Y. State 842 ¶9 (2010); see also N.Y. State 709 (1998). [2] For example, in particular cases, the electronic copies might have to meet standards for future admissibility in evidence, see N.Y. State 940 ¶14. And when © 2013 David Paul Horowitz, All Rights Reserved

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the item is one listed in Rule 1.15(d), copies must be maintained in a “medium that preserves an image of the document that cannot be altered without detection.” Rule 1.15(d)(3).

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V. Other Disclosure Developments a. Statutes L. 2012, ch. 438 Amends CPLR §3101(d)(iv) to permit a podiatrist to be called as an expert witness at trial. Effective Date: February 17, 2014. § 5. Paragraph 1 of subdivision (d) of section 3101 of the civil practice law and rules is amended by adding a new subparagraph (iv) to read as follows: (iv) In an action for podiatric medical malpractice, a physician may be called as an expert witness at trial. § 6. This act shall take effect eighteen months after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of the provisions of this act on its effective date is authorized to be made on or before such effective date. N.Y. G.B.L. §399-ddd (As amended, effective December 12, 2012) § 399-ddd. Confidentiality of social security account number Beginning on and after January first, two thousand eight: 1. (a) As used in this section "social security account number" shall include the number issued by the federal social security administration and any number derived from such number. Such term shall not include any number that has been encrypted. (b) For purposes of this section, the term "inmate" means a person confined in any local correctional facility as defined in subdivision sixteen of section two of the correction law or in any correctional facility as defined in paragraph (a) of subdivision four of section two of the correction law pursuant to such person's conviction of a criminal offense. 2. No person, firm, partnership, association or corporation, not including the state or its political subdivisions, shall do any of the following: (a) Intentionally communicate to the general public or otherwise make available to the general public in any manner an individual's social security account number. This paragraph shall not apply to any individual intentionally communicating to the general public or otherwise making available to the general public his or her social security account number. © 2013 David Paul Horowitz, All Rights Reserved

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(b) Print an individual's social security account number on any card or tag required for the individual to access products, services or benefits provided by the person, firm, partnership, association or corporation. (c) Require an individual to transmit his or her social security account number over the internet, unless the connection is secure or the social security account number is encrypted. (d) Require an individual to use his or her social security account number to access an internet web site, unless a password or unique personal identification number or other authentication device is also required to access the internet website. (e) Print an individual's social security account number on any materials that are mailed to the individual, unless state or federal law requires the social security account number to be on the document to be mailed. Notwithstanding this paragraph, social security account numbers may be included in applications and forms sent by mail, including documents sent as part of an application or enrollment process, or to establish, amend or terminate an account, contract or policy, or to confirm the accuracy of the social security account number. A social security account number that is permitted to be mailed under this section may not be printed, in whole or part, on a postcard or other mailer not requiring an envelope, or visible on the envelope or without the envelope having been opened. (f) Encode or embed a social security number in or on a card or document, including, but not limited to, using a bar code, chip, magnetic strip, or other technology, in place of removing the social security number as required by this section. (g) Knowingly use the labor or time of or employ any inmate in this state, or in any other jurisdiction, in any capacity that involves obtaining access to, collecting or processing social security account numbers of other individuals. 3. This section does not prevent the collection, use, or release of a social security account number as required by state or federal law, the use of a social security account number for internal verification, fraud investigation or administrative purposes or for any business function specifically authorized by 15 U.S.C. 6802. 4. Any person, firm, partnership, association or corporation having possession of the social security account number of any individual shall, to the extent that such number is maintained for the conduct of business or trade, take reasonable measures to ensure that no officer or employee has access to such number for any purpose other than for a legitimate or necessary purpose related to the conduct of such business or trade and provide safeguards necessary or appropriate to preclude unauthorized access to the social security account number and to protect the confidentiality of such number. 5. Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable. 6. No person may file any document available for public inspection with any state agency, political subdivision, or in any court of this state © 2013 David Paul Horowitz, All Rights Reserved

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that contains a social security account number of any other person, unless such other person is a dependent child, or has consented to such filing, except as required by federal or state law or regulation, or by court rule. 7. Whenever there shall be a violation of this section, application may be made by the attorney general in the name of the people of the state of New York to a court or justice having jurisdiction by a special proceeding to issue an injunction, and upon notice to the defendant of not less than five days, to enjoin and restrain the continuance of such violations; and if it shall appear to the satisfaction of the court or justice that the defendant has, in fact, violated this section, an injunction may be issued by such court or justice, enjoining and restraining any further violation, without requiring proof that any person has, in fact, been injured or damaged thereby. In any such proceeding, the court may make allowances to the attorney general as provided in paragraph six of subdivision (a) of section eighty-three hundred three of the civil practice law and rules, and direct restitution. In connection with any such proposed application, the attorney general is authorized to take proof and make a determination of the relevant facts and to issue subpoenas in accordance with the civil practice law and rules. Whenever the court shall determine that a violation of subdivision two of this section has occurred, the court may impose a civil penalty of not more than one thousand dollars for a single violation and not more than one hundred thousand dollars for multiple violations resulting from a single act or incident. The second violation and any violation committed thereafter shall be punishable by a civil penalty of not more than five thousand dollars for a single violation and not more than two hundred fifty thousand dollars for multiple violations resulting from a single act or incident. No person, firm, partnership, association or corporation shall be deemed to have violated the provisions of this section if such person, firm, partnership, association or corporation shows, by a preponderance of the evidence, that the violation was not intentional and resulted from a bona fide error made notwithstanding the maintenance of procedures reasonably adopted to avoid such error.

b. Scope Of Disclosure “In Controversy” Walters v. Sallah, 2013 NY Slip Op 05546 (1st Dep’t 2013) Plaintiff seeks to recover damages for permanent injuries allegedly sustained to his knee and wrist in an automobile accident, which continue to be aggravated by sitting, walking, and bending. He also alleges he suffered a serious injury in that he was unable to perform substantially all his usual daily functions for at least 90 out of 180 days following the accident. Essentially, defendants seek medical records to determine whether there is any preexisting arthritis or medical disability, exclusive of the alleged injury to plaintiff's left knee and wrist, which © 2013 David Paul Horowitz, All Rights Reserved

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would be the cause of plaintiff's inability to perform substantially all of his usual daily activities. Defendants met their burden of showing that the requested records relating to plaintiff's arthritis and disability are relevant to a physical condition that plaintiff placed "in controversy" through his deposition testimony and bill of particulars, and which he also reported to defendants' examining chiropractor (citations omitted). However, because of the potentially tangential nature of the discovery involved, we remand to Supreme Court for a determination of the nature of the arthritis and disability plaintiff suffers, and to exercise its discretion to limit the discovery to reasonable parameters, including as to time frame and relevant parts of the body. Dixon-Gales v. Brooklyn Hosp. Ctr., 35 Misc.3d 676, 941 N.Y.S.2d 468 (Supreme Court Kings Co. 2012) (Steinhardt, J.) In a medical malpractice action, Court held defendant’s doctor was not entitled to a protective order preventing full disclosure of his telephone records, as the timing of certain phone calls between him and another doctor were relevant to both the prosecution and defense of the action. CPLR 3101(a) mandates disclosure of all matter material and necessary in the prosecution or defense of an action, a standard that is interpreted liberally to require disclosure, upon request, of any material that will assist in trial preparation. Here, in the interest of privacy, a protective order directed defendant to submit home and cell phone records for the relevant date and time only for in camera inspection, with the relevant phone numbers indicated. The records were to be redacted as appropriate before provided to the other parties. Medical Records Discoverable, But In Camera Review Required To Redact Irrelevant And “Sensitive And Confidential Information” Adams v. Daughtery, 2013 NY Slip op 06460 (4th Dep’t 2013) In view of the injuries alleged by plaintiff, we conclude that she waived her physician- patient privilege and any related privileges with respect to the records sought, and that those records may be material and necessary to the defense of the action (citation omitted). There may be information in plaintiff's records, © 2013 David Paul Horowitz, All Rights Reserved

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however, that is irrelevant to this action, and there are legitimate concerns with respect to "the unfettered disclosure of sensitive and confidential information" contained in those records (citation omitted). Thus, here, as in Dominique D. v Koerntgen (citation omitted), we modify the order by denying defendants' motion and cross motion to the extent that they seek authorizations for the full disclosure of the records sought and by granting plaintiff's cross motion to the extent that it seeks an in camera review of the records, and we remit the matter to Supreme Court for such in camera review and the redaction of any irrelevant information (citation omitted).

c. Jurisdictional Disclosure Doe v. McCormack, 2012 NY Slip Op 07620 (2d Dep’t 2012) "As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden on this issue" (citations omitted). However, "in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth a sufficient start, and show[ ] their position not to be frivolous'" (citation omitted). "[T]he jurisdictional issue is likely to be complex. Discovery is, therefore, desirable, indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits" (citation omitted). Under the particular circumstances of this case, the plaintiffs established that facts " may exist'" to exercise personal jurisdiction over the defendant Saint Michael's Abbey of Norbertine Fathers (hereinafter the Abbey defendant), and has made a " sufficient start'" to warrant disclosure on the issue of personal jurisdiction (citations omitted). The Abbey defendant's remaining contentions either are without merit or have been rendered academic by our determination. Accordingly, the Supreme Court properly denied the Abbey defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction, with leave to renew upon the completion of discovery.

d. Depositions 1. Thompson Redux

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In 2010 the Fourth Department issued its decision in Thompson v. Mather13 concerning the role of an attorney representing a non-party witness at a deposition. In 2013 the Fourth Department, in a three-two decision re-affirmed the Thompson holding: [W]e decline to depart from our conclusion in Thompson (citation omitted) that the express language of CPLR 3113(c) prohibits the participation of the attorney for a nonparty witness during the deposition of his or her client. We further note, however, that the nonparty has the right to seek a protective order (citation omitted), if necessary. Sciara v. Surgical Associates of Western N.Y., P.C., 104 A.D.3d 1256, 961 N.Y.S.2d 640 (4th Dep’t 2013). While the Fourth Department recently granted leave in Sciara, until there is a ruling from the Court of Appeals of another appellate division reaches a contrary result, Sciara is controlling statewide. See, Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (2d Dep’t 1984)(“The Appellate Division is a single State-wide court divided into departments for administrative convenience (citations omitted) and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule (citations omitted).”).14 See “Not Sure If I Can Say Something,” NYSBA Bar Journal, January 2013 at 22; “No Role Means No Role,” NYSBA Bar Journal, May 2013 at 16. Sciara v. Surgical Associates of Western N.Y., P.C., 104 A.D.3d 1256, 961 N.Y.S.2d 640 (4th Dep’t 2013) Plaintiffs commenced this medical malpractice action alleging, inter alia, that defendant George Blessios, M.D. was negligent with respect to surgery he performed on Renee Sciara (plaintiff). Respondent, a pathologist, examined tissue removed from plaintiff during the surgery. The deposition of respondent was discontinued following a contentious verbal exchange between plaintiffs' counsel 13 14

70 A.D.3d 1436, 894 N.Y.S.2d 671 (4th Dep’t 2010). LexisNexis AnswerGuide New York Civil Disclosure (LexisNexis 2013).

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and respondent's counsel that arose when respondent's counsel interrupted the deposition to clarify a question asked by plaintiffs' counsel. Plaintiffs moved, inter alia, for an order precluding respondent's counsel from participating in any respect in the continued deposition of respondent. Respondent cross-moved, inter alia, for an order permitting her counsel to participate in her deposition. Supreme Court granted the motion in part by directing, inter alia, that respondent was required to complete her deposition. The court also granted the cross motion in part by permitting respondent's counsel to participate in the deposition as provided for in 22 NYCRR 221.2 and 221.3. The court erred in granting the cross motion to that extent (citation omitted), and we therefore modify the order accordingly. As we stated in Thompson, "counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses shall proceed as permitted in the trial of actions in open court'" (citation omitted), and it is axiomatic that counsel for a nonparty witness is not permitted to object or otherwise participate in a trial (see e.g. id.). We recognize that 22 NYCRR 221.2 and 221.3 may be viewed as being in conflict with CPLR 3113 (c) inasmuch as sections 221.2 and 221.3 provide that an "attorney" may not interrupt a deposition except in specified circumstances. Nevertheless, it is well established that, in the event of a conflict between a statute and a regulation, the statute controls (citation omitted). We also recognize the practical difficulties that may arise in connection with a nonparty deposition, which also have been the subject of legal commentaries (citations omitted). However, we decline to depart from our conclusion in Thompson (70 AD3d at 1438) that the express language of CPLR 3113 (c) prohibits the participation of the attorney for a nonparty witness during the deposition of his or her client. We further note, however, that the nonparty has the right to seek a protective order (citation omitted), if necessary.

2. Refusal To Appear In New York For Deposition Plaintiff’s Failure To Appear For Deposition In New York Because Of Fear Of Arrest Insufficient To Excuse Failure To Appear Weinstein v. Gindi, 92 A.D.3d 526, 938 N.Y.S.2d 538 (1st Dep’t 2012) Plaintiff, a non-domiciliary of New York, commenced action in Supreme Court, New York County. His deposition was noticed by defendant to be held in New York County, but he refused to appear, fearing he would be arrested under an open arrest

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warrant for contempt in an unrelated New York action. Court held fear of arrest is a not a sufficient hardship warranting relocation of the deposition out of state. For refusing to appear for his deposition, Court upheld default judgment entered against plaintiff.

3. Deposition Corrections/Tailored Testimony CPLR 3216: 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). © 2013 David Paul Horowitz, All Rights Reserved

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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. Untimely Deposition Corrections Stricken, Eliminating Expert’s Foundation Begley v. City of New York, --- A.D.3d ---, 972 N.Y.S.2d 48 (2d Dep’t 2013) Further, the affidavit of the plaintiffs' expert was insufficient to support the Supreme Court's conclusion that issues of fact exist as to whether The Forum School "adequately supervised Jonathan relative to his exposure to potential allergens on the day in question," and "acted reasonably in responding to [Jonathan's] emergency or in assessing, monitoring and treating Jonathan's anaphylactic reaction" (id.). McDonald's conclusions were largely based on the premise that Jonathan "was exposed to a substance to which he was allergic [ ], likely blueberries, beginning at approximately 10:00 a.m." However, McDonald's assertion that Jonathan was allergic to blueberries was based solely on the 2008 errata sheets in which the plaintiff mother attempted to alter her 2006 deposition testimony by adding blueberries to the list of foods and other substances to which Jonathan was allergic. The Supreme Court properly rejected the plaintiff mother's belated attempt to materially alter her deposition testimony to support a claim that blueberries were one of Jonathan's known allergens (citations omitted), and the plaintiffs do not challenge the portion of the Supreme Court's order which granted Timothy's motion to strike the errata sheets. Thus, McDonald's conclusion that exposure to blueberries "likely" triggered Jonathan's anaphylactic reaction lacked a proper evidentiary basis. Feigned Issue In CPLR §3116 Deposition Correction Sheet & Affidavit Insufficient To Deny Summary Judgment

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Garcia-Rosales v. Bais Rochel Resort, 100 A.D.3d 687, 954 N.Y.S.2d 148 (2d Dep’t 2012) The plaintiff failed to raise a triable issue of fact in opposition to that branch of the defendants' motion. The correction sheet attached to the plaintiff's deposition transcript presented feigned issues of fact tailored to avoid the consequences of his earlier deposition testimony, and was, therefore, insufficient to raise a triable issue of fact (citations omitted). The correction sheet contained no statement of reasons for making the corrections (citations omitted). The plaintiff's affidavit also presented feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and was likewise insufficient to raise a triable issue of fact (citations omitted). Therefore, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law § 240(1), and properly denied that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on that cause of action. Morrissey v. New York City Tr. Auth., 100 A.D.3d 464, 953 N.Y.S.2d 503 (1st Dep’t 2012) Defendant demonstrated its entitlement to summary judgment by submitting plaintiff's testimony establishing that she was unable to identify the cause of her injury and could only speculate as to the cause (citation omitted). To the extent her affidavit in opposition to defendant's motion varies from her testimony at the General Municipal Law § 50-h hearing and deposition, it must be regarded as tailored to avoid the consequences of that earlier testimony, and is therefore insufficient to raise an issue of fact (citation omitted). As plaintiff's expert opinion is based on plaintiff's speculative testimony, it too is speculative and therefore insufficient to raise an issue of fact. Nor does the inconsistency regarding the heights of the risers on the stationary escalator raise the inference that defendant was negligent (citations omitted). Non-Party Affidavit “Tailored” New v. New York State Urban Dev. Corp., 2013 NY Slip Op 06794 (1st Dep’t 2013) Defendants met their prima facie burdens by proffering evidence that there was no proof that the assailant who shot plaintiffs was an intruder as opposed to a building resident or guest. Specifically, plaintiffs testified that they could not even ascertain the assailant's race or gender (citation omitted). Thus, plaintiffs contention that negligence on part of defendants was a proximate cause of the incident is entirely speculative (citation omitted). Inasmuch as plaintiffs' arguments in opposition failed to refute defendants' evidence, defendants' motions should have been granted (citations omitted).

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We add that the affidavit of Madison's former employee was irrelevant inasmuch as it does not address the issue of how the assailant gained entry into the building (citation omitted). Moreover, the affidavit appears to have been tailored to avoid the consequences of plaintiffs' depositions (citations omitted). New v. New York State Urban Dev. Corp., 2013 NY Slip Op 06794 (1st Dep’t 2013) cites Washington v. New York City Bd. Of Educ., 95 739, 945 847 (1st Dep’t 2012), which cites Fernandez v. VLA Realty LLC, 45 A.D.3d 391, 845 N.Y.S.2d 304 (1st Dep’t 2007), which cites Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 701 N.Y.S.2d 403 (1st Dep’t 2000): 2000 Feigned/Tailored Testimony Case Offers No Citation For Proposition Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 701 N.Y.S.2d 403 (1st Dep’t 2000) While issues of fact and credibility may not ordinarily be determined on a motion for summary judgment, where, as here, the self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant's motion for summary judgment. Plaintiff Can Be Questioned About Participation In Witness Protection Program M. C. v. Sylvia Marsh Equities, Inc., 103 A.D.3d 676, 959 N.Y.S.2d 280 (2d Dep't 2013) The Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was to compel the plaintiff to appear for a supplemental deposition on the issue of her participation in the witness protection program. The facts and circumstances surrounding the plaintiff's entry into the witness protection program are material since the plaintiff has claimed that she cannot answer certain deposition questions as a result of her participation in that program (citation omitted). A participant in the witness protection program cannot use his or her entry into the program as a means "to shield him [or her] from . . . the adverse effects of the litigation he [or she] has initiated," especially where the subsequent action is not related to the criminal action which triggered the need for the party's participation in the witness protection program in the first instance (citation omitted). Further, in this case, the information may bear on the plaintiff's credibility in light of the fact she provided differing explanations at her depositions as to why she has two social security numbers. Accordingly, the Supreme Court should have granted that branch of the defendant's motion to the extent of directing the plaintiff to appear for a supplemental deposition concerning the facts and circumstances surrounding her entry into the witness protection program. The transcript of the supplemental deposition and any information disclosed at that deposition are only © 2013 David Paul Horowitz, All Rights Reserved

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to be disclosed to counsel of record and, if the transcript or any such information becomes part of the court's file, they are to be filed under seal (citation omitted). Use Of Unsigned Deposition Transcripts Gomez v. Shop-Rite of New Greenway, 2013 NY Slip Op 06527 (1st Dep’t 2013) In opposition, plaintiff raised a triable issue of fact as to whether Shop-Rite created the subject condition. Reliance upon plaintiff's unsigned deposition transcripts in opposing the motion was proper, since the transcripts were certified by court reporters, and Shop-Rite, which relied upon the same transcripts, did not challenge the testimony as inaccurate (citation omitted). Plaintiff testified that after she fell she was wet and noticed a Shop-Rite employee two feet away unloading produce from boxes, one of which was leaking and creating the puddle in which she claimed to have stepped before her fall. Such testimony allows the inference that Shop-Rite created the condition that caused plaintiff to fall (citation omitted). Use Of Videotaped Deposition At Trial And Objections To Testimony Nary v. Jonientz, 2013 NY Slip Op 06454 (4th Dep’t 2013) Defendant failed to preserve for our review her contention that the court erred in permitting plaintiff to cross-examine defendant's expert physician concerning compensation he had been paid in the past for performing medical examinations and providing testimony for defendants in other personal injury actions. Defendant's expert physician testified in a recorded video deposition. While defendant's attorney made various objections during the recording of that video testimony, there is no indication that defendant ever made a timely and specific objection to the court or otherwise sought a ruling regarding the nature or scope of that cross-examination (citations omitted). Defendant further contends that the court abused its discretion in redacting certain portions of the recorded testimony of defendant's expert physician (citation omitted). All of the discussions and rulings regarding specific redactions to the recorded testimony of defendant's expert physician took place off the record, and defendant thereafter registered only a general objection to those redactions. Moreover, with respect to the redactions of testimony where defendant's expert physician read from medical records subsequently admitted in evidence at trial, the record establishes that defendant's attorney seemingly acquiesced in those redactions based on the court's ruling that defendant's attorney would be permitted to read from those records during summation. Thus, on this record, it cannot be said that the court abused it discretion in redacting portions of the recorded testimony of defendant's expert physician.

d. Privilege/Confidential Information © 2013 David Paul Horowitz, All Rights Reserved

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Disclosure Of HIV Status The disclosure of HIV medical information in New York State Courts is regulated by Pub. Health L. §2785, which provides: ß 2785. Court authorization for disclosure of confidential HIV related information 1. Notwithstanding any other provision of law, no court shall issue an order for the disclosure of confidential HIV related information, except a court of record of competent jurisdiction in accordance with the provisions of this section. 2. A court may grant an order for disclosure of confidential HIV related information upon an application showing: (a) a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding; (b) a clear and imminent danger to an individual whose life or health may unknowingly be at significant risk as a result of contact with the individual to whom the information pertains; (c) upon application of a state, county or local health officer, a clear and imminent danger to the public health; or (d) that the applicant is lawfully entitled to the disclosure and the disclosure is consistent with the provisions of this article. 3. Upon receiving an application for an order authorizing disclosure pursuant to this section, the court shall enter an order directing that all pleadings, papers, affidavits, judgments, orders of the court, briefs and memoranda of law which are part of the application or the decision thereon, be sealed and not made available to any person, except to the extent necessary to conduct any proceedings in connection with the determination of whether to grant or deny the application, including any appeal. Such an order shall further direct that all subsequent proceedings in connection with the application shall be conducted in camera, and, where appropriate to prevent the unauthorized disclosure of confidential HIV related information, that any pleadings, papers, affidavits, judgments, orders of the court, briefs and memoranda of law which are part of the application or the decision thereon not state the name of the individual concerning whom confidential HIV related information is sought. 4. (a) The individual concerning whom confidential HIV related information is sought and any person holding records concerning confidential HIV related information from whom disclosure is sought shall be given adequate notice of such application in a manner which will not disclose to any other person the identity of the individual, and shall be afforded an opportunity to file a written response to the application, or to appear in person for the limited purpose of providing evidence on the statutory criteria for the issuance of an order pursuant to this section. (b) The court may grant an order without such notice and opportunity to be heard, where an ex parte application by a public health officer shows that a clear © 2013 David Paul Horowitz, All Rights Reserved

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and imminent danger to an individual whose life or health may unknowingly be at risk requires an immediate order. (c) Service of a subpoena shall not be subject to this subdivision. 5. In assessing compelling need and clear and imminent danger, the court shall provide written findings of fact, including scientific or medical findings, citing specific evidence in the record which supports each finding, and shall weigh the need for disclosure against the privacy interest of the protected individual and the public interest which may be disserved by disclosure which deters future testing or treatment or which may lead to discrimination. 6. An order authorizing disclosure of confidential HIV related information shall: (a) limit disclosure to that information which is necessary to fulfill the purpose for which the order is granted; and (b) limit disclosure to those persons whose need for the information is the basis for the order, and specifically prohibit redisclosure by such persons to any other persons, whether or not they are parties to the action; and (c) to the extent possible consistent with this section, conform to the provisions of this article; and (d) include such other measures as the court deems necessary to limit any disclosures not authorized by its order.15 Disclosure of HIV records has been ordered (often with redaction of identifying information), inter alia, in cases where there is a claim of wrongful transmission of the AIDS virus, Plaza v. Estate of Wisser, 211 A.D.2d 111, 626 N.Y.S.2d 446 (1st Dep’t 1995)(Court held Pub. Health L. § 2785 trumped physician-patient privilege and that policy goal of preserving HIV confidentiality status did not apply to individual who was deceased); in claims arising from allegations of HIV infection caused by a blood transfusion, Chambarry v. Mount Sinai Hosp., 161 Misc. 2d 1000, 15 N.Y.S.2d 830 (Supreme Court 1994)(Exchange of records of other cases or allegations of transfusion with HIV infected blood ordered, but with patient identifying information redacted); and fraudulent concealment of the AIDS, Flynn v. Doe, 146 Misc.2d 934, 533 N.Y.S.2d 288

15

Pub. Health L. §2785.

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(Supreme Court 1990)(Plaintiff alleged defendant fraudulently concealed his HIV status when he had unprotected sex with her). Of course, in each of these cases, infection with the AIDS virus was the central element of damages.16 Last year’s materials reported on a Second Department decision, Doe v. Sutlinger Realty Corp., 96 A.D.3d 898, 947 N.Y.S.2d 153 (2d Dep’t 2012), where that court affirmed the referral to “a special referee to ‘hear and report’ on the ‘statutorily required findings,’ which we interpret to mean the statutorily required findings under Public Health Law ß 2785(2)(a) and (5). In essence, the Supreme Court properly directed a factfinding hearing on the issue of whether there is a compelling need for each item of HIVrelated discovery sought by the defendant.” See, “I Thought That Was Confidential,” NYSBA Bar Journal September 2012 at 20 (Appendix A). Doe was contrasted with earlier decisions from the First Department appearing to require that more stringent criteria be met before even a referral to a referee would be made. See, “Physician/Patient Privilege: Doe Revisited,” NYSBA Bar Journal February 2013 at 18 (Appendix B). This year, the First Department has made clear that more than semantics separates its decisions from the Second Department decision in Doe. In Abdur-Rahman v Pollari, 2013 NY Slip Op 4124967 N.Y.S.2d 31 (1st Dep't 2013), defendants in a wrongful death action sought, inter alia, disclosure of decedent’s medical records, including records relating to his HIV status. In contrast to Doe, where plaintiff volunteered at his deposition that he was HIV positive, the only suggestion that the decedent in AbdurRahman was HIV positive was the Estate’s invocation of the protection of the Public Health Law in response to defendants’ demands: 16

LexisNexis Answerguide New York Civil Disclosure (LexisNexis 2013).

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The court ordered defendants to take plaintiff's deposition before she would be required to execute any authorizations for the release of medical records related to physician and hospital visits made by decedent prior to his death. However, at her deposition, plaintiff refused to answer questions concerning her husband's health while he was alive, claiming application of the spousal privilege. She mentioned that he had received social security disability benefits for an eight-year period ending approximately five years before his death, but would not disclose the nature of the disability. Speedy Lube then moved to compel plaintiff to provide it with authorizations to request the medical records related to the treatment of plaintiff by any and all medical providers within 10 years of his death. *** The other defendants moved for the same relief. Plaintiff cross-moved for, inter alia, a protective order. In his affirmation in support of the cross motion, plaintiff's counsel invoked Public Health Law § 2785(2)(a), asserting that the law "shields from disclosure confidential HIV related information, unless an application is made showing a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding.'" Plaintiff argued that defendants had not demonstrated any compelling need for such records. Plaintiff also opposed defendants' request for medical records in general, contending that she had not placed decedent's health at issue, and that defendants were on a fishing expedition. Plaintiff asserted that defendants' proposed inspection protocol was vague and unnecessary, and that it was likely to result in destruction of evidence. Further, she argued that the expert discovery requested by defendants went beyond the scope of what she was obligated to exchange pursuant to CPLR 3101(d). In reply, defendants collectively asserted that, by invoking Public Health Law § 2785, plaintiff had "suggested" that decedent had HIV or AIDS, which was sufficient to require inspection of related medical records. The IAS court granted defendants' motions to compel and denied plaintiff's application for a protective order. It found that decedent's medical records were relevant and material to plaintiff's wrongful death claim. *** 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" (citation omitted). Under that broad standard, defendants are entitled to records shedding light on decedent's health at the time of his death and prior thereto. Plaintiff is seeking "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought" (citation omitted). One of the factors in determining fair and just compensation is the decedent's health and life © 2013 David Paul Horowitz, All Rights Reserved

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expectancy at the time of death (citation omitted). 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). Defendants' argument that they are entitled to records bearing on any HIV infection or AIDS which decedent may have had requires a closer analysis than simply deciding whether it is material and necessary. That is because Public Health Law § 2785(2) limits the circumstances under which a court may order disclosure of such records, and the only one applicable here mandates that the requesting party demonstrate a "compelling need" for the records. This Court has rejected as "flawed" the argument that "a compelling need' under Public Health Law § 2785(2) can be established by a showing that the information [sought] is material and necessary' within the purview of CPLR 3101(a)" (citations omitted).. Further, in demonstrating a compelling need, the requesting party must, as a threshold matter, establish that the subject of the requested records actually has or had HIV or AIDS (citation omitted). Defendants' sole argument for establishing that decedent had HIV or AIDS is that plaintiff invoked Public Health Law § 2785(2) in her cross motion for a protective order. However, something more direct and concrete is required for purposes of compelling production of such sensitive medical records. For example, in Budano (citation omitted), we found that the plaintiff's counsel's representation that it would not be feasible to redact information related to any HIV status was not probative as to whether the plaintiff actually had HIV (id. at 499). Defendants here have failed to offer any direct evidence suggesting that decedent had HIV or AIDS. Even if they had made such a showing, we would not find that they demonstrated a compelling need for records related to decedent's condition. The mere fact that decedent was infected with HIV or had AIDS would not necessarily be material in determining the pecuniary value of his life had the accident not occurred. In order to satisfy the requirements of Public Health Law § 2785(2), defendants were required to present an expert affidavit linking any such condition to an expected diminution in plaintiff's quality of life and life expectancy (citation omitted). After all, without such evidence it would be impossible for any court to satisfy its obligation, codified in Public Health Law § 2785(5), to support any ruling finding a compelling need to disclose HIV and AIDS records with "written findings of fact, including scientific or medical findings, citing specific evidence in the record which supports [such a] finding." Certainly here the court did not make any such findings, or, at the very least, order a fact-finding hearing to more closely assess © 2013 David Paul Horowitz, All Rights Reserved

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whether a compelling need existed (citation omitted). Defendants, citing this Court's decision in Matter of Plaza v Estate of Wisser (citation omitted), argue that it is unnecessary to show a compelling need for HIV and AIDS records where the subject of the records is deceased. However, in that case this Court merely observed that one of the goals of Public Health Law § 2785 is to preserve confidentiality in order to encourage HIV testing, and that such a consideration does not exist where a person who had HIV or AIDS has died (citation omitted). The Court still performed a compelling need analysis as required by the statute (citation omitted). Accordingly, we do not interpret that case as eliminating the requirement to show compelling need where the subject of the HIV or AIDS records is deceased.

e. Medical Examinations Plaintiff’s Frustration Of Defendant’s Medical Examination Prior To Surgery Constitutes Spoliation & Leads To Dismissal Of Action Mangione v. Jacobs, 37 Misc.3d 711, 950 N.Y.S.2d 457 (Supreme Court Queens Co. 2012) (Markey, J.) Plaintiff failed to attend her court-ordered medical examination despite three court orders and multiple postponements. Plaintiff then underwent non-emergency spinal surgery, apparently in an effort to frustrate the medical examinations as ordered. Court held plaintiff undergoing non-emergency surgery and thereby depriving defendant of a court-ordered medical examination can constitute spoliation of evidence, depending on the circumstances. Here, plaintiff offered no explanation for the sudden urgency of the surgery, when the accident had occurred over two years earlier. Even if the surgery had been necessary at that time, during yet another postponement of the examinations, plaintiff’s counsel improperly and deceitfully attempted to postpone them again by contacting the scheduling service directly, rather than communicate with the court or defense counsel. Court then held the appropriate sanction was a dismissal of the action.

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Defendant Waives Entitlement To Further Medical Examination Fougner v. Royal Oak, 37 Misc.3d 564, 950 N.Y.S.2d 564 (Supreme Court, Kings Cty. 2012 In a personal injury action, defendant’s motion for an order pursuant to CPLR 3121(a) and 22 NYCRR 202.17(g) compelling plaintiff to submit to a medical examination, made after plaintiff had filed her note of issue and unaccompanied by an affidavit demonstrating an unusual or unanticipated change of circumstance, was denied. plaintiff had submitted to a medical examination before filing the note of issue, but the examining physician opined in his report that plaintiff’s prior shoulder surgery prevented him from conducting a full examination due to plaintiff’s complaints of pain. After plaintiff denied defendant’s request for an additional exam and filed the note of issue, defendant’s were required, but failed, to either move to vacate the note of issue or submit an affidavit demonstrating unusual or unanticipated circumstances that developed after the filing which would warrant an additional medical examination to prevent prejudice. The report did not provide a basis for the court to compel an additional examination, as the physician had been aware of plaintiff’s surgery yet chose to go forward with the examination regardless of its limited utility. Trial Court Abused Discretion in Denying Certain Disclosure in Medical Malpractice Action Rawlins v. St. Joseph’s Hosp. Health Ctr., 2013 NY Slip Op 5391 (4th Dep’t 2013) On the merits, we note that CPLR 3101 requires "full disclosure of all matter material and necessary in the prosecution or defense of an action" (citation omitted). The phrase " material and necessary should 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. The test is one of usefulness and reason'" (citations omitted). "Entitlement to discovery of matter satisfying the threshold requirement is, however, tempered by the trial court's authority to impose, in its discretion, © 2013 David Paul Horowitz, All Rights Reserved

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appropriate restrictions on demands which are unduly burdensome . . . and to prevent abuse by issuing a protective order where the discovery request may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (citations omitted). In opposing a motion to compel discovery, a party must "establish that the requests for information are unduly burdensome, or that they may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (citations omitted). Applying those rules here, we conclude that the court erred in denying plaintiff's motion with respect to items 12, 14-16, 21, 24, 29, and 53, and otherwise properly denied the motion. The court went on to explain in some detail the relevance of the disclosure requested by plaintiff and erroneously denied by the trial court, and is useful reading for attorneys handling medical malpractice cases.

f. Penalties For Failure To Disclose CPLR §3126 Disclosure Penalty Arpino v. F.J.F. & Sons Elect. Co., 102 A.D.3d 201, 959 N.Y.S.2d 74 (2d Dep’t 2012) The Second Department considered the appropriate sanction for intentionally false and misleading disclosure responses: Although the defendants claim that their responses were merely careless practice, the record belies that claim. They were, in fact, intentionally false and misleading, and were interposed for the purpose of avoiding the defendants' obligation to provide timely and meaningful discovery responses (citation omitted). The defendants' neglect of a court-ordered deadline and misrepresentation of their knowledge or possession of clearly discoverable material and information, without providing any excuse for doing so, must be deemed willful and contumacious (citation omitted). Further, defense counsel's unsupported, conclusory claim of law office failure cannot be accepted (citations omitted). Turning to the issue of the appropriate sanction to impose for the defendants' disregard of their discovery obligations, we are guided by CPLR 3126, which provides: If any party ... refuses to obey an order for disclosure or willfully 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: © 2013 David Paul Horowitz, All Rights Reserved

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"(1) an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or "(2) an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, ... or from using certain witnesses; or "(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." *** Here, the defendants' pre-note of issue responses to the plaintiff's combined demands inaccurately asserted that they were unaware of any witnesses other than Foronjy, and later Danny Heffron, and that they were not in possession of any photographs. These responses were later revealed, by the defendants' own supplemental responses, to be misleading and false, as post-accident photographs, the video run, and witness statements of Danny Heffron, Brian "Evester," Guy Graziano, and David Shapiro were relied upon in the Scalia report. Addresses for these witnesses, as well as their statements, in addition to the 18 digital images and video run relied upon by Scalia, were not provided to the plaintiff until the defendants served their supplemental response to the plaintiff's combined demands on June 15, 2010, more than eight months after the filing of the note of issue, although that information was obviously available to the defendants prior to the date that the preliminary conference was conducted. Contrary to the finding of the Supreme Court, this demonstrates an ongoing pattern of willful and contumacious conduct which served to obstruct discovery, notwithstanding the disclosure of some information responsive to the plaintiff's demand. Under these circumstances, it was an improvident exercise of the Supreme Court's discretion to have denied, in its entirety, the plaintiff's motion to impose sanctions upon the defendants pursuant to CPLR 3126. The defendants' disregard of their courtordered discovery obligations cannot be tolerated (citations omitted). The defendants engaged in an ongoing course of conduct of delay and obfuscation during this litigation, including the provision of information which was inaccurate if not intentionally false, the neglect of a court-ordered discovery deadline, and the service of "corrected" information long after Foronjy's deposition was conducted and the note of issue filed. This conduct merits the strong sanction of preclusion, with the defendants permitted to employ, at trial, only that which was disclosed in a reasonable and timely manner. While we acknowledge that the defendants attempted to correct their inaccurate discovery responses many months after the filing of the note of issue by serving supplemental responses, the belated corrections were inadequate to cure the © 2013 David Paul Horowitz, All Rights Reserved

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prejudice to the plaintiff, who theretofore relied upon the truthfulness and completeness of his adversaries' proffer during the course of the litigation. The rights of the demanding party to be able to fully prepare for trial simply cannot be protected by either belated corrective supplements or the hope of discretionary discovery while the action is on the trial calendar. The case at bar is readily distinguishable from the cases cited by the defendants, in which no sanction was imposed because full disclosure was made, albeit belatedly. Here, while full disclosure was ultimately made approximately nine months after the filing of the note of issue, it was preceded by false representations that the defendants did not have the witness information and photographs requested. Indeed, had the defendants not produced the witness information, the video run, and the photographs while the case was on the trial calendar, there would have been no basis upon which the plaintiff would have sought it given the repeated misrepresentations by the defendants, through their counsel, that no such information was in their possession or impliedly in existence. The defendants' affirmative misrepresentations undercut their position that they acted only belatedly, but not willfully and contumaciously. Furthermore, it is clear that the defendants did not make a good-faith effort to comply with outstanding discovery demands and disclosure orders. The witness information, video run, and photographs, which formed the basis of the Scalia report, were all dated months prior to their disclosure to the plaintiff. Accordingly, the defendants' belated disclosure cannot be excused upon the ground that they were making a good-faith effort to comply with long-outstanding discovery demands and disclosure orders. In fashioning a remedy under CPLR 3126, we are cognizant that Foronjy did provide Heffron's name and address during his deposition. As a result, the defendants will not be precluded from calling Heffron as a witness at the time of trial. This Court, however, rejects the suggestion of the defendants that, with proper investigation, the plaintiff could have ascertained the identities of the other witnesses from the information that the defendants provided. Although Foronjy indicated that Brian "Ester" was a witness to the accident, the name of this fellow FJF employee was incorrectly spelled phonetically in the deposition transcript, and Foronjy testified that "Ester" lived in Farmingdale when, in fact, he apparently resides in Massepequa. Regardless of whether the plaintiff could have ascertained the true name and address of Brian "Evester," and the identities of the two other witnesses through further investigation, the fact remains that the defendants abjectly failed to appropriately meet their discovery obligations, as required by CPLR article 31, the plaintiff's demands thereunder, and the preliminary conference order. It was the defendants' responsibility to provide the information with respect to the remaining three witnesses, the photographs, and the video run, which they plainly had in their possession long before they finally decided to reveal it (see CPLR 3101[h]). The failure to timely provide a complete and accurate response seriously impaired the plaintiff's ability to fully prepare for © 2013 David Paul Horowitz, All Rights Reserved

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and conduct Foronjy's deposition, and thereby chart the plaintiff's course during the litigation and in preparing for trial. For the foregoing reasons, we modify the Supreme Court's order and preclude the defendants from calling any of the witnesses identified in their post-note of issue discovery responses as a witness at trial, except for Heffron, or from utilizing so much of the Scalia report as relied upon the statements of the precluded witnesses. Further, the defendants are precluded from introducing any of the post-accident photographs of their vehicle and the video run at the time of the trial, and Scalia is precluded from testifying and offering an opinion utilizing or relying upon the statements of the precluded witnesses, photographs, or video run. Accordingly, to the extent that the Scalia report also relied upon the precluded photographs or the precluded video run, it must also be precluded. However, the plaintiff shall not be precluded from utilizing any such photographs and calling any such witnesses he deems appropriate, in which case the defendants may appropriately respond in the discretion of the trial court. N.B.: Parties seeking disclosure who are advised that documents cannot be located, or do not exist, are wise to insist on being furnished with a “Jackson Affidavit,” based upon the First Department decision in Jackson v. City of New York, 185 A.D.2d 768, 586 N.Y.S.2d 952 (1st Dep’t 1992): Plaintiff attempted to commence discovery concerning the maintenance of the building, including whether there had been any notice to the City of the defective condition of the stairway prior to her injury, but, after repeated adjournments of scheduled depositions at the City's behest, plaintiff moved to strike the City's answer unless a witness with knowledge of the building's maintenance was produced. On August 19, 1988, the motion was granted to the extent of striking the City's answer unless, on or before October 18, 1988, defendant produced a person with knowledge of the pertinent facts and circumstances. On November 17, 1988, the City produced a maintenance worker who testified that he had no personal knowledge of the building and that he had been unable to locate the building's maintenance file. On October 6, 1989, the City produced a Deputy Director for Property Maintenance who testified that she had been told that a search for the record had been conducted and had been unavailing. At this point, plaintiff moved again to strike defendant's answer for failing to produce the records and that motion was granted insofar as striking the City's answer unless the City produced, within 20 days, an affidavit from the person who had conducted the search for the missing records stating that the records could not be located and stating what efforts had been made to locate them. On May 23, 1990, one month beyond the time provided, the City provided an © 2013 David Paul Horowitz, All Rights Reserved

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affidavit by its employee, Antonia Delacruz, stating I have made a search for building records for a building located at 970 Prospect Avenue, Bronx, New York, by searching for the address of that building in both the Central Files and Archive Files of the Department of Housing Preservation and Development. As a result of my search for said building records, no records have been found for a building located for the above-mentioned address. On October 3, 1990, plaintiff moved for summary judgment based on the City's failure to timely comply with the prior order, thereby triggering the conditional order striking its answer and, in the alternative, for summary judgment on the merits. The City cross-moved for an extension of time to deem the Delacruz affidavit timely filed on the grounds that the lateness had been inadvertent and due to the fact that it had moved its offices during the subject period. The court granted the City's motion for additional time on the basis that plaintiff had shown no prejudice and denied plaintiff's motion for summary judgment. We find that the IAS court was within its discretion in permitting the City to file the Delacruz affidavit one month later than had been called for in its earlier order. However, in light of the nature of that affidavit and under the circumstances of this case, we find that the City should nevertheless be sanctioned for its failure to respond to discovery. Under CPLR 3126, sanctions may be imposed for deliberate, dilatory or wilful failure to comply with discovery (citation omitted). Here, after years of delay, the affidavit presented by the City made no showing as to where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, or whether a search had been conducted in every location where the records were likely to be found. In short, the affidavit provided the court with no basis to find that the search had been a thorough one or that it had been conducted in a good faith effort to provide these necessary records to plaintiff. Under such circumstances, the City's failure to locate any maintenance records should not inure to its own benefit, particularly in light of the behavior of the City from the outset of this litigation in failing to cooperate with discovery and blatantly ignoring court orders. For this reason, we find that the issue of notice to the City of the alleged defective condition that caused the plaintiff's injuries should be resolved in favor of the plaintiff and defendant is precluded from raising any issue with respect thereto (citation omitted).

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Dismissal Not Permitted As Penalty For Failure To Attend Court-Ordered Mediation Carnegie Associates Ltd. v. Miller, 94 A.D.3d 404, 946 N.Y.S.2d 107 (1st Dep’t 2012) The First Department held that the trial court erred in striking plaintiff’s complaint for failing to attend a court-ordered mediation. That penalty was not permitted because CPLR 3126, Rule 202.26(e), or 22 NYCRR 202.70(g)(Rule 3) did not apply to the failure to attend a court-ordered mediation: The motion court erred in striking the complaint and reply to defendants' counterclaims since neither CPLR 3126 nor 22 NYCRR 202.26 (e) authorizes this sanction under the circumstances. While CPLR 3126 authorizes the striking of a party's pleadings, this extreme sanction is only authorized when a party "refuses to obey an order for disclosure or willfully refuses to disclose information which the court finds ought to have been disclosed" (citation omitted). Thus, by its express terms the sanction prescribed by CPLR 3126 is warranted only upon a party's failure to comply with discovery requests or court orders mandating disclosure (citations and parentheticals omitted). Here, where plaintiff had already been sanctioned for its failure to provide discovery and where defendants premised the instant motion to strike plaintiff's pleadings primarily on plaintiff's failure to proceed with court-ordered mediation, CPLR 3126 simply does not apply. Similarly, despite plaintiff's conceded failure to proceed with the court-ordered mediation, it was also error to strike its pleadings pursuant to 22 NYCRR 202.26 (e). While 22 NYCRR 202.26 authorizes the trial court to schedule pretrial conferences, a mediation, pursuant to Rule 3 of the Rules of the Commercial Division of the Supreme Court (ciation omitted), is not a pretrial conference. More importantly, even if this rule did apply, the only sanction authorized by 22 NYCRR 202.26 (e) for a party's failure to appear at a pretrial conference is "a default under CPLR 3404," which initially only authorizes the striking of the case from the court's trial calendar. Accordingly, here, striking plaintiff's pleadings, which by operation of law resulted in dismissal of this action is not warranted pursuant to 22 NYCRR 202.26 (e). While we agree with the dissent that plaintiff's conduct was egregious, we nevertheless find that the sanction imposed by the motion court, namely, dismissal of plaintiff's complaint and the striking of its reply to defendant's counterclaims was simply not permitted. We further note that, here, plaintiff was in fact penalized for its conduct inasmuch as the motion court granted defendants' motion for costs and fees incurred as a result of plaintiff's failure to proceed to mediation. © 2013 David Paul Horowitz, All Rights Reserved

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In support of its argument that the motion court's order was appropriate, the dissent partly relies on rule 8 (h) of the Rules of the Alternative Dispute Resolution Program, Commercial Division, Supreme Court, New York County. However, the dissent alone raises this argument, one which has never been advanced by any of the parties, either on appeal or below. Therefore, we should not consider it (citation and parenthetical omitted). Moreover, contrary to the dissent's remaining position, rule 12 of the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70 [g]) does not avail plaintiff since like 22 NYCRR 202.26 (e), the dismissal promulgated by rule 12, which is made more clear by its reference to 22 NYCRR 202.27, is for the failure to appear at a conference and not for the failure to proceed to mediation. Late Production of Disclosure Knoch v. City of New York, 2013 NY Slip Op 05557 (2d Dep’t 2013) In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Kurtz, J.), dated September 6, 2012, as denied that branch of her motion pursuant to CPLR 3126 which was to impose a monetary sanction upon the defendant for failure to provide discovery and granted that branch of the motion which was for an award of costs only to the extent of awarding her costs in the sum of $100. ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiff's motion which was to impose a monetary sanction upon the defendant, and substituting therefor a provision granting that branch of the motion to the extent of imposing a monetary sanction upon the defendant in the sum of $2,500 payable to the plaintiff's counsel; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff. The defendant did not begin to produce evidence crucial to the prosecution of this case until more than three years after such production was ordered by the court, five months after the original trial date was adjourned, and two months after the plaintiff refiled the note of issue. Consequently, a monetary sanction in the sum of $2,500 is warranted to compensate the plaintiff's counsel for the time expended and costs incurred in connection with the defendant's failure to fully and timely comply with court-ordered disclosure and discovery requests (citations omitted).

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CPLR 8383(a) Baxter v. Javier, 2013 NY Slip Op 5605 (2d Dep’t 2013) The Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability on his causes of action to recover damages for breach of contract, fraud, and negligent misrepresentation. The plaintiff failed to make a prima facie showing that the parties clearly intended that the contract provisions at issue would survive the delivery of a certain deed, or that the defendants made a misrepresentation or a material omission of fact which was false and known to be false by them (citations omitted). Further, as to the cause of action alleging negligent misrepresentation, the plaintiff's submissions failed to establish that a fiduciary or special relationship existed between the defendants and the plaintiff in this arms-length transaction (citation omitted). Accordingly, the plaintiff's motion for summary judgment on the issue of liability on his causes of action to recover damages for breach of contract, fraud, and negligent misrepresentation was properly denied, regardless of the sufficiency of the opposing papers (citation omitted). The Supreme Court properly granted that branch of the defendants' cross motion which was for summary judgment dismissing the plaintiff's claim for punitive damages. In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether the defendants' alleged conduct was so gross, wanton, or willful, or of such high moral culpability, as to warrant an award of punitive damages (citations omitted). Inasmuch as the complaint only seeks $3,500 in compensatory damages, the Supreme Court may, in its discretion, remove the action to a lower court pursuant to CPLR 325(d). The Supreme Court improvidently exercised its discretion in denying that branch of the defendants' cross motion which was for an award of costs and attorney's fees pursuant to CPLR 8303-a(c). The plaintiff's claim for punitive damages was asserted solely to harass the defendants. Thus, an award of costs and attorney's fees is warranted (citations omitted). Hearing Scheduled For Imposition Of Sanctions On Attorney & Party 150 Centreville, LLC v. Lin Assoc. Architects, PC, 2013 NY Slip Op 23038 (Supreme Court, Queens Cty. 2013) In an architectural malpractice action, a stunning series of court-orders for disclosure were not complied with, there was a substitution of attorneys for the recalcitrant party, culminating in a conditional order of dismissal which, when not complied with, resulted in the dismissal of the action. © 2013 David Paul Horowitz, All Rights Reserved

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Justice Martin E. Ritholtz gave a detailed recitation of relevant case law on obligation to preserve evidence and papers, the failure to comply with disclosure obligations and the imposition of sanctions, and then discussed the request for sanctions: There is no question that the work that was expended by defense counsel was time-consuming. If the Court awards actual expenses and reasonable attorney's fees, no restriction as to monetary amount exists as long as the attorney's fees were "reasonable" under the particular set of circumstances. See, e.g., 47 Thames Realty, LLC v Robinson, 85 AD3d 851, 852 [affirming award of over $20,000 of reasonable attorney's fees and costs]. Usually, a hearing will be required to determine the "reasonableness" of the sums expended in counsel fees. See, e.g., Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P., 78 AD3d 1008, 1009, supra; Yenom Corp. v 155 Wooster St., Inc., 33 AD3d 67; Paull v First Unum Life Ins. Co., 288 AD2d 842, 843 [Supreme Court erred in awarding plaintiffs $30,000 in attorney's fees without conducting a hearing]. In arriving at a figure for reasonable attorney's fees to be asserted against Wright and the plaintiffs herein, the Court will conduct a hearing. Although Mr. Wright's argument for a hearing is styled generally, without contesting the specifics of what might be unreasonable in the defense-offered time records and hourly fees, the Court refuses to engage in a Solomonic exercise of "splitting the baby" (see, 1 Kings 3:16-28). Theamount of any award for reasonable attorneys fees cannot be plucked out of a hat or from thin air. It must be established by competent evidence. See, e.g., Peabody Coal Co. v McCandless, 255 F.3d 465, 470 [7th Cir. 2001] [a decision that found that an attorney's hourly rate of $200.00 per hour was reasonable, without citing supporting reasons, required vacatur of the award; "It is a number plucked from a hat."]; Dynasteel Corp. v Aztec Indus., Inc., 611 So. 2d 977, 986 [Miss. 1992] ["No evidence substantiating the reasonableness of this figure was presented into the record. DynaSteel is correct in that, as a general matter, the amount of an attorneys' fees award should be supported by credible evidence and should not be plucked out of the air."]. The New York Court of Appeals, in In re Freeman's Estate, 34 NY2d 1, 9, stated, concerning the assessment and reasonableness of a fee award: Long tradition and just about a universal one in American practice is for the fixation of lawyers' fees to be determined on the following factors: time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved. The Appellate Division, Second Department, in Kaygreen Realty Co., LLC v IG © 2013 David Paul Horowitz, All Rights Reserved

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Second Generation Partners, L.P., 78 AD3d 1008, supra, dealt with the lower court's imposition of an award of reasonable attorney's fees in the amount of $139,857.75, pursuant to a violation of 22 NYCRR Part 130, based on a finding of frivolous conduct. Remitting the matter to the lower court for a new hearing on the amount of the attorney's fee, the Second Department stated that "there was no evidence as to the customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented.'" Id. at 1010 [citation of quoted case omitted]. Similarly, in Paull v First Unum Life Ins. Co., 288 AD2d 842, supra, the appellate court found that the Supreme Court erred in awarding plaintiffs $30,000 in attorneys' fees as a sanctions award without conducting a hearing.The Appellate Division, Fourth Department, stated that a hearing afforded the defendant an opportunity to contest the amount to be awarded and "to ensure that the fees are fixed upon a proper showing of the value of work necessitated and amount of time actually expended'" by plaintiffs in litigating the relevant discovery motions." 288 AD2d at 842 [citation of quoted case omitted]. As the Appellate Division, First Department, stated in Yenom Corp. v 155 Wooster St., Inc., 33 AD3d 67, supra, with equal application to the present case: "Although defendants' attorneys have attached their legal bills in order to establish the appropriate amounts, we deem it prudent to afford plaintiff and its counsel an opportunity to challenge the significant amounts requested at an adversary hearing." Id. at 75. For other pertinent cases containing a good discussion of the award of reasonable attorney's fees in the context of a sanction award made pursuant to 22 NYCRR Part 130, see Timoney v Newmark & Co. Real Estate, 299 AD2d 201, lv. to appeal dismissed, 99 NY2d 610; Skolnick v Goldberg, 297 AD2d 18 [per curiam]; Matter of Rose BB., 262 AD2d 805 lv. to appeal dismissed, 93 NY2d 1039. This Court, accordingly, at a hearing, will consider testimony and other proof of the reasonableness of attorney's fees incurred by defendants from 2011 to date, as a result of the misconduct of Wright and the plaintiffs, as set forth above. The defendants' cross motion is, therefore, granted to the extent that the Court will conduct a hearing on the reasonableness of the attorney's fees to be awarded against Wright and the corporate plaintiffs and in favor of defense counsel. The hearing will be held on March 8, 2013, in Courtroom 313, at the Courthouse, 8811 Sutphin Boulevard, Jamaica, Queens County, New York, at 10:00 A.M. The court also highlighted a gap in the law governing the imposition of sanctions: The Court concludes with the following observation and recommendation. An interesting legal issue, although not raised by the defendants, is whether the Court can impose an award of attorney's or counsel fees against a nonparty that causes, provokes, and/or directs frivolous litigation. This legal issue points to a glaring deficiency of Part 130. In In re Guarraci, 100 AD3d 633, 634, the Second Department, affirming the lower court, approved of the maximum sanction amount of $10,000.00 being levied against a nonparty who was an attorney - - a © 2013 David Paul Horowitz, All Rights Reserved

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sum that, as stated above, gets paid by the offending lawyer or law firm to the "Lawyers' Fund for Client Protection." 22 NYCRR § 130-1.3; see, e.g., Rocchio v Centrum Constr. Co., Inc., 221 AD2d at 448, supra; accord, Capetola v. Capetola, 96 AD3d 612, 613. Yet, while a court, under Part 130 may levy sanctions against a nonparty attorney, the Appellate Division, Second Department, in State Farm Fire and Casualty v Parking Systems Valet Service, 85 AD3d 761,764-765, held that an award of reasonable attorneys fees for the conduct of frivolous, vexatious, or malicious litigation under Part 130 may not be issued against a nonparty, who is not an attorney. The Second Department stated: "Statutes authorizing an award of costs and sanctions are in derogation of common law and, therefore must be strictly construed." Id. at 764-765. If applicable, a nonparty may be pursued for remedies for civil contempt (see, Judiciary Law § 773; see also, CPLR 5210 [empowering the Supreme Court to punish a contempt of court in connection with a proceeding to enforce a money judgment]; CPLR 5251 [the Supreme Court may hold "any person" in contempt for, among other things, "false swearing upon an examination" relating to the enforcement of a money judgment] ), and only where proper notice was given pursuant to Judiciary Law section 756. State Farm Fire & Cas. v Parking Sys. Valet Serv., 85 AD3d at 764-765, supra. Civil contempt is inapplicable to DeMartino under the facts of the present case. This Court would like to hold that not only the corporate plaintiffs, but that its nonparty principal, DeMartino, should be personally responsible for the payment of all counsel fees to be awarded by the Court following a hearing. Since Part 130, however, must be strictly construed and cannot be interpreted so as to allow an award of attorney's fees against a nonparty such as DeMartino in the present action, the court-created rule has a gaping loophole. DeMartino is the guiding principal and manager of the two corporate plaintiffs. Yet, he may not be touched by the Court in assessing reasonable attorney's fees. As discussed below, the New York Legislature should deal with this and other deficiencies in 22 NYCRR Part 130, as currently formulated. New York's Legislature, if it seriously would like to put teeth and muscle to the repeated calls by our appellate courts against frivolous, vexatious, and malicious litigation, could profitably look to the State of Georgia as an example. The Legislature of the State of Georgia enacted a law, stating: The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them. Ga. Code Ann. § 13-6-11 ["Expenses of litigation"]; see, e.g., Kroger Co. v. Walters, 735 SE2d 99, 106 [Ga. App. 2012]. This Court suggests that the New York Legislature adopt a similar law to the © 2013 David Paul Horowitz, All Rights Reserved

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Georgia statute, but that goes even further by empowering a court to award counsel fees and impose sanctions against a nonparty principal of a firm, partnership, or enterprise. The Legislature in New York should enact a law that discourages any party and a nonparty principal (whether he be an attorney or not), not only an obdurate and calculating defendant, from engaging in "bad faith" tactics that cause an adversary "unnecessary trouble and expense," at the pain of a jury decision determining attorney's fees. With the enactment of a powerful and potent law governing the award of attorney's fees, even against a nonparty principal of an entity, our appellate courts can be spared from the effort of reminding litigants and their counsel every few years of their disclosure obligations and the importance of heeding and obeying court orders on discovery. A powerful argument can also be made, should the Legislature fail to act, that New York State's judicial authorities that created 22 NYCRR Part 130 should be free to amend it to include the award of attorney's fees against principals of entity parties. See, Woods v Lancet, 303 NY 349, 355 ["Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule."]; see also, Matter of AG Ship Maintenance v Lezak, 69 NY2d 1, supra.

g. Failure To Prosecute - CPLR 3216 Vacatur of CPLR 3216 Dismissal Reversed by Second Department Bhatti v. Empire Realty Assoc., Inc., 2012 NY Slip Op 09018 (2d Dep’t 2012) In a terse decision, the Second Department reversed a trial court’s decision vacating a CPLR 3216 dismissal where the ninety-day demand was contained in a Compliance Conference Order, and issued a reminder of the steps necessary to avoid dismissal, and permit reinstatement of the complaint: In a compliance conference order date March 3, 2006, the Supreme Court directed the plaintiffs to file a note of issue on or before September 3, 2006, and warned that the action would be dismissed if the plaintiffs failed to comply. Counsel for the plaintiffs signed the order, acknowledging receipt thereof. This order had the same effect as a 90-day notice pursuant to CPLR 3216 (citations omitted). Therefore, the plaintiffs were required either to serve and file a timely note of issue or to move, before the default date, for an extension of time pursuant to CPLR 2004 )citations omitted). The plaintiffs did neither. Accordingly, the action was properly dismissed pursuant to CPLR 3216 (citations omitted). To vacate the dismissal of an action pursuant to CPLR 3216, the plaintiffs were required to demonstrate a justifiable excuse for their failure to comply with the compliance conference order and the existence of a potentially meritorious cause © 2013 David Paul Horowitz, All Rights Reserved

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of action (citations omitted). Here, the conclusory and unsubstantiated claim of law office failure proffered by the plaintiffs did not rise to the level of a justifiable excuse (citations omitted). As the plaintiffs failed to provide a justifiable excuse, we need not address whether they established the existence of a potentially meritorious cause of action (citation omitted). Accordingly, the Supreme Court should have denied the plaintiffs' motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, to restore the action to active status, and to extend their time to file a note of issue. No Inherent Power of Court to Dismiss Action For General Delay Absent Service of a CPLR 3216 Demand (See, Chase v. Scavuzzo, 87 N.Y.2d 228 [1995]) Arroyo v. Board of Educ. Of City of New York, 2013 NY Slip Op 5507 (2d Dep’t 2013) “It was ‘perhaps comatose’ for more than 12 years, but is ‘still alive:’” Laches Argument Fails; Delay of More Than Twelve Years From Case Marked “Disposed” to Motion to “Restore” Not Fatal – Second Department Reminds Bench & Bar of Summary of Cases Law Regarding Interaction Between CPLR 3216, CPLR 3404, and 22 NYCRR 202.27 and Cautions That Prior Decisions Suggesting Laches May Serve as Independent Basis for Dismissal Should Not Be Followed [T]he doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216(b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable. Indeed, the Court of Appeals concluded in Airmont Homes that dismissal for either gross laches or failure to prosecute was not available in the absence of compliance with CPLR 3216 (citation omitted). To allow dismissal under the circumstances of this case based on the doctrine of laches would be tantamount to permitting dismissal for general delay, which the courts lack inherent authority to do, and which is inconsistent with the legislative intent underlying CPLR 3216. Further, it would be inconsistent with the analysis in Cohn, Airmont Homes, and Chase (citations omitted). CPLR 3216 reflects a legislative choice between competing policy considerations (citations omitted). It places the onus on the defendant, or the court, to serve a 90-day notice demanding that the plaintiff resume prosecution of the action where there has been an unreasonable delay or neglect. A defendant cannot sit idly by while memories fade and evidence spoils (citation omitted). Although an extensive delay in prosecuting an action may, at times, prejudice a defendant's ability to defend against a suit, a defendant has the statutory means of avoiding such prejudicial delay by serving a 90-day demand (citations omitted). Laches, which is an equitable doctrine, does not provide an alternate route to dismissal where a defendant has not served the 90-day demand statutorily required to prompt resumption of the litigation (citations omitted).

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Campbell v. New York City Tr. Auth., 2013 NY Slip Op 05553 (2d Dep’t 2013): The Supreme Court properly denied that branch of the defendant's motion which was to dismiss the complaint for failure to prosecute based on the doctrine of laches. Pursuant to CPLR 3216, an action may not be dismissed for a delay in prosecution unless a written demand has been served on the party prosecuting the action to serve and file a note of issue within 90 days after receipt of the demand (citations omitted). The procedural device of dismissing a complaint for undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action for general delay where the plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216(b) (citations omitted). Since the plaintiff was never served with a 90-day demand, the Supreme Court had no authority to dismiss the complaint due to her alleged unreasonable and prejudicial delay in prosecuting the action See also, Armouth-Levy v. New York City, 2013 NY Slip Op 05551 (2d Dep’t 2013): The defendant's motion to dismiss the complaint based on the inordinate and prejudicial delay in prosecuting the action should have been denied. CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action. Here, the Supreme Court did not possess the power to dismiss this pre-note of issue action on the ground of a general lack of prosecution since the plaintiff had not received a 90-day demand pursuant to CPLR 3216(b) requiring the plaintiff to serve and file a note of issue See also, Gatehouse v. New York City Hous. Auth., 2013 NY Slip Op 5556 (2d Dep’t 2013); Baxter v. Javier, 2013 NY Slip Op 5605 (2d Dep’t 2013)

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VI. Expert Exchanges & Testimony See Singletree Expert Issues, §VII, below New Commercial Division Rules On Expert Disclsoure § 202.70 Rules of the Commercial Division of the Supreme Court. (g) Rules of practice for the Commercial Division. Rule 13. Adherence to Discovery Schedule, Expert Disclosure. (a) Parties shall strictly comply with discovery obligations by the dates set forth in all case scheduling orders. Such deadlines, however, may be modified upon the consent of all parties, provided that all discovery shall be completed by the discovery cutoff date set forth in the preliminary conference order. Applications for extension of a discovery deadline shall be made as soon as practicable and prior to the expiration of such deadline. Non-compliance with such an order may result in the imposition of an appropriate sanction against that party pursuant to CPLR 3126. (b) If a party seeks documents as a condition precedent to a deposition and the documents are not produced by the date fixed, the party seeking disclosure may ask the court to preclude the non-producing party from introducing such demanded documents at trial. (c) If any party intends to introduce expert testimony at trial, no later than thirty days prior to the completion of fact discovery, the parties shall confer on a schedule for expert disclosure -- including the identification of experts, exchange of reports, and depositions of testifying experts -- all of which shall be completed no later than four months after the completion of fact discovery. In the event that a party objects to this procedure or timetable, the parties shall request a conference to discuss the objection with the court. Unless otherwise stipulated or ordered by the court, expert disclosure must be accompanied by a written report, prepared and signed by the witness, if either (1) the witness is retained or specially employed to provide expert testimony in the case, or (2) the witness is a party's employee whose duties regularly involve giving expert testimony. The report must contain: (A) a complete statement of all opinions the witness will express and the basis and the reasons for them; (B) the data or other information considered by the witness in forming the opinion(s); (C) any exhibits that will be used to summarize or support the opinion(s); (D) the witness's qualifications, including a list of all publications authored in the previous 10 years; (E) a list of all other cases at which the witness testified as an expert at trial or by deposition during the previous four years; and (F) a statement of the compensation to be paid to the witness for the study and testimony in the case.

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The note of issue and certificate of readiness may not be filed until the completion of expert disclosure. Expert disclosure provided after these dates without good cause will be precluded from use at trial. Amended eff. Sept. 23, 2013. In Limine Motions Generally Not Appealable Bozzetti v. Pohlman, 94 A.D.3d 1201, 941 N.Y.S.2d 532 (3d Dep’t 2012) Both sides in a boundary dispute moved in limine to preclude the other’s expert surveyor for lack of foundation, and the trial court granted the motion of defendant and denied the plaintiff’s motion, and plaintiff appealed: The appeal must be dismissed. "[A]n order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission" (citations omitted). While a pretrial order that limits the scope of the issues to be tried is appealable (citations omitted), the order here addresses only the admissibility of evidence in advance of trial (citations omitted). Accordingly, appellate review of Supreme Court's ruling must be deferred until after trial so that " 'the relevance of the proffered evidence, and the effect of Supreme Court's ruling with respect thereto, can be assessed in the context of the record as a whole' " (citations omitted). Madden v. Town of Greene, 95 A.D.3d 1426, 942 N.Y.S.2d 911 (3d Dep’t 2012) In a roadway design case the trial court denied defendant’s motion in limine to preclude plaintiff from utilizing certain photographs, highway design standards, and lack of warning signs, and defendant appealed. The Third Department dismissed the appeal: We now dismiss defendant's appeal as premature. Contrary to defendant's contention, the order appealed from does not "limit[ ] the legal theories of liability to be tried" (citation omitted), nor does it appear to be " 'the functional equivalent of a motion for partial summary judgment dismissing the complaint' " (citation omitted). Defendant's argument that the evidence sought to be precluded pertained to claims that are allegedly time barred was first raised in defendant's reply affidavit with respect to the motion in limine and, thus, was not properly before Supreme Court (citations omitted). Plaintiffs correctly acknowledge that, to the extent Supreme Court addressed such argument (in a footnote in its decision), the court's comments do not constitute law of the case. Accordingly, insofar as this appeal is from an order limiting the admissibility of evidence, the order © 2013 David Paul Horowitz, All Rights Reserved

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"constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission" (citations omitted). Reports Incorporated In Expert’s Affidavit Thomas v. NYLL Mgt. Ltd., 2013 NY Slip Op 06983 (1st Dep’t 2013) In opposition, plaintiff submitted his treating physicians' reports setting forth increasing limitations in quantified terms, and finding increasing positive test results for impingement, in the months preceding his shoulder surgery, which was sufficient to raise a triable issue of fact as to whether he sustained "significant" limitations in use of his shoulder following the accident (citations omitted). The treatment reports were incorporated by reference into the surgeon's affirmation, and therefore can properly be considered. Plaintiff also raised a triable issue of fact as to causation by submitting his doctor's finding of a causal relationship based on his treatment, and conclusion that his surgical findings were consistent with a traumatic etiology, as well as the absence of any prior reported shoulder complaints (citations omitted). Failure Of Expert To Submit Data Upon Which Conclusions Were Based Leads To Denial Of Motion Costanzo v. County of Chautauqua, 2013 NY Slip Op 06475 (4th Dep’t 2013) We conclude that Supreme Court properly denied the County's cross motion for summary judgment dismissing the complaint against it inasmuch as it failed to meet its initial burden of establishing its entitlement to judgment as a matter of law (citation omitted). The County's cross motion was based in part on the affidavit of a transportation engineer who offered his opinion as an accident reconstruction expert. We conclude that the affidavit was speculative and conclusory inasmuch as the expert failed to submit the data upon which he based his opinions, and thus the affidavit had no probative value (citation omitted). Expert’s Qualifications Go To Weight Santana v. De Jesus, 2013 NY Slip Op 06934 (1st Dep’t 2013) We reject defendants' contentions that plaintiff's experts were unqualified or that their testimony was speculative (citations omitted). At best, these arguments speak to the evidence's weight, not admissibility, and the jury here clearly found their testimony persuasive (citations omitted). It was well within the jury's province to accept their opinions and reject that of defendants' expert (citations omitted). © 2013 David Paul Horowitz, All Rights Reserved

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Expert Reliance On Building Code Violations & Storm In Progress Vosper v. Fives 160th, LLC, 2013 NY Slip Op 06815 (1st Dep’t 2013) Plaintiff Nigen Vosper testified that he was injured when he slipped and fell on the front entrance landing of his apartment building as he left for work at approximately 8:00 a.m. on December 24, 2008. He testified that the landing was covered in a transparent sheet of ice, apparently caused by overnight precipitation. The motion court erred in applying Administrative Code of the City of New York § 16- 123 to this case and finding that defendant Fives 160th LLC should have had until 11:00 a.m. to remedy the icy condition on the landing. Section 16-123, by its plain language, only governs property owners' duty to remove snow, ice, and other debris from the public sidewalks; it does not apply to their own property. We reject defendant's claim that its landing should be considered part of the sidewalk. The record does not show that the landing fits the definition of "sidewalk" found in Administrative Code of the City of New York § 19-101(d), and the photographs clearly depict the location of the accident as several feet away from the abutting sidewalk flag. The record presents issues of fact as to the applicability of the "storm in progress" rule (citations omitted). The undisputed weather data shows that on the day of plaintiff's accident, a light mixture of sleet and freezing rain fell in the vicinity of the building between 3:00 and 4:00 a.m., and only freezing rain was falling by 4:00 a.m. and normal rain by no later than 6:00 a.m., when the temperature rose above freezing, and that from 6:00 a.m. onward, there was only trace or light rainfall, with hourly accumulations of less than one-tenth of an inch (citations omitted). Moreover, as defendant's live-in superintendent was present, questions of fact exist whether the two hours between the cessation of freezing rain and the accident should have afforded him enough time to notice the condition and whether he should have taken steps to remedy it (citation omitted). In any event, there are issues of fact whether the landing's alleged structural defects may have contributed to or exacerbated the hazardous condition on the landing. Plaintiff's architectural expert averred that defendant violated several specific provisions of the New York City Building Code when, the year before the accident, it removed the first step of the landing, which was the tenants' sole means of entering and exiting the building, and replaced it with the sloped landing at issue. He explained that the modification violated the Code's provision requiring level platforms across doorways. He opined that the uneven, sloped nature of the landing made it dangerous and likely to produce a fall, and that when covered in snow or ice, the risk greatly increased, presenting the "perfect trap," particularly since pursuant to the Code the landing's excessive slope ratio required handrails, and there were none.

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The motion court erred in finding that the structural defects alleged by plaintiff's expert could not have been a proximate cause of his fall because plaintiff testified that he slipped on ice on the landing, and did not attribute his fall to the defects. There is no evidence that such technical knowledge was within plaintiff's purview. It is sufficient that he identified the slippery condition of the icy landing as the cause of his fall, and his expert, who physically inspected the landing, explained that the structural defects he observed, all in violation of applicable Building Code provisions, caused or contributed to the condition (citations omitted). Defendant's expert's disagreement with plaintiff's expert's findings or methodology presents issues of fact and credibility for a jury to resolve. Expert Fails To Establish Causal Connection Budano v. Gordon, 2013 NY Slip Op 06814 (1st Dep’t 2013) Defendant established his entitlement to judgment as a matter of law. Defendant submitted, inter alia, photographs of the subject step and staircase, showing that the claimed defect, a worn and slippery step, was too trivial to be actionable (citations omitted). Defendant also demonstrated that there were a lack of prior complaints or injuries relating to the step (citation omitted). In opposition, plaintiff failed to raise a triable issue of fact. His affidavit, wherein he states that the loose handrail and inconsistent stair dimensions contributed to his inability to prevent his fall, was inconsistent with his testimony that he simply slipped (citation omitted). Moreover, the findings of plaintiff's expert concerning uneven riser heights and a loose handrail were insufficient to connect plaintiff's fall to any purported defect in the risers (citation omitted).

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VII. Summary Judgment & Trial Issues a. Singletree Expert Preclusion 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.17 CPLR 3101(d)(1)(i) makes no mention of the filing of the note of issue vis a vis the exchange of experts, and, in fact, the only reference point stated for the exchange of experts refers to “an insufficient period of time before the commencement of trial . . .” Practitioners must continue to exercise care in actions pending in the Second Department to exchange experts prior to filing the note of issue or risk being precluded from offering an affidavit or affirmation of an expert in opposition to a summary judgment motion made post-note. Although the Second Department in Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2d Dep’t 2012) backed away from its prior holding in Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 17

CPLR 3101(d)(1)(i).

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702 (2d Dep’t 2008) (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), holding that post-note expert exchange is but one fact for the court to consider, it nonetheless remains a factor, and practitioners are wise to take precautions if an expert cannot be exchanged prior to filing the note of issue, as in an action where postnote of issue disclosure is conducted and it is necessary to obtain that disclosure before an expert can be retained to testify at time of trial. Those facts, analogous to a “showing of good cause,” should be included int he motion papers by a party seeking to utilize an expert who is exchanged post-note. See, e.g., Lukasik v. Lukasik, N.Y.L.J., Mar. 9, 2009, at 21 (Sup. Ct. Queens County 2009) (where an expert has not been disclosed pre-Note, all post-Note attempts to offer that expert’s testimony, whether through motion practice or prior to trial, must be accompanied by a satisfactory explanation excusing submission’s untimeliness and a showing of lack of prejudice, willfulness, etc.). There is uncertainty whether the First Department has adopted a rule akin to Singletree. In Garcia v. New York, 98 A.D.3d 857, 951 N.Y.S.2d 2 (1st Dep’t 2012), the First Department, without citing Singletree or its progeny, 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).” See, also, “A Singletree Grows in Manhattan,” NYSBA Bar Journal October 2012 at 22 (Appendix C); “If A Singletree Falls,” NYSBA Bar Journal, November/December 2012 at 16 (Appemndix D).

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To date, the post-Rivers score is tied three all when it comes to affirming expert preclusion as a provident exercise of discretion, see Brande v. City of White Plains, 107 A.D.3d 926, 966 N.Y.S.2d (2d Dep't 2013); Moses v T-Mobile, 106 A.D.3d 967, 966 N.Y.S.2d (2d Dep't 2013); Kozlowski v. Oana, 102 A.D.3d 751, 959 N.Y.S.2d 500 (2d Dep't 2013), versus an improvident exercise to preclude, see, Salcedo v Weng Qu Ju, 106 A.D.3d 977, 965 N.Y.S.2d 595 (2d Dep't 2013); LeMaire v Kuncham, 102 A.D.3d 659, 957 N.Y.S.2d 732 (2d Dep't 2013); Begley v. City of New York, --- A.D.3d ---, 972 N.Y.S.2d 48 (2d Dep’t 2013). All six decisions indicate they were decided “on this record,” or words to that effect, and none offer any details of what was contained in the record. Perhaps the score should be four to three, since in Jacobs v Nussbaum, 100 A.D.3d 702, 953 N.Y.S.2d 875 (2d Dep't 2012), the Second Department held: "[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" (citation omitted). Here, considering all of the relevant circumstances, the Supreme Court providently exercised its discretion in granting the plaintiff's application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101 (d) (Citations omitted). The most recent decision, Begley v. City of New York, --- A.D.3d ---, 972 N.Y.S.2d 48 (2d Dep’t 2013), included in its analysis an inquiry into the retention of the proffered expert in conducting its “Rivers” analysis: With regard to Timothy's motion for summary judgment, we first address the plaintiffs' claim that the Supreme Court should have disregarded the expert affidavit of registered nurse Maureen Walls Sileo because Timothy failed to disclose her expert's identity prior to the completion of discovery. Although CPLR 3101(d)(1)(i) requires a party, upon request, to identify the expert witnesses the party expects to call at trial, it "does not require a party to respond to a demand for expert witness information at any specific time'" (citations © 2013 David Paul Horowitz, All Rights Reserved

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omitted). Thus, "the fact that the disclosure of an expert pursuant to CPLR 3101(d)(1)(i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely" (citation omitted). We have also recognized that precluding an expert's affidavit in the context of a summary judgment motion based solely on the failure to provide expert disclosure prior to the filing of the note of issue "does not necessarily advance the court's role of determining the existence of a triable issue of fact," particularly in a medical malpractice action, where a party must generally submit an affidavit or affirmation from an expert medical provider to meet its prima facie burden (citation omitted). Thus, "[p]recluding an expert's affidavit solely on the ground that the offering party did not disclose the expert's identity pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness is not consistent with the purpose and procedural posture of a motion for summary judgment" (citation omitted). Applying these principles here, the Supreme Court did not improvidently exercise its discretion in considering the affidavit of Timothy's expert (citations omitted). Notably, there is no indication in the record that Timothy retained Walls Sileo before the note of issue was filed and deliberately delayed in responding to the plaintiffs' expert witness demand, or that the delay in disclosing Walls Sileo's identity hampered the plaintiffs' ability to respond to her motion. Indeed, the plaintiffs responded to Walls Sileo's affidavit with the same expert affidavit they had utilized in opposing The Forum School's motion. Rivers has been cited as authority to preclude an expert at time of trial by the Second Department in Deandino v New York City Tr. Auth., 105 A.D.3d 801, 963 N.Y.S.2d 288 (2d Dep't 2013): The defendants contend that they were deprived of a fair trial when the Supreme Court precluded them from eliciting certain testimony from an expert witness on the ground that the expert was only identified by the defendants during the trial, after the note of issue and certificate of readiness were filed. As this Court recently held in Rivers v Birnbaum (citation omitted), CPLR 3101(d)(1) does "not automatically preclude experts disclosed near the commencement of trial from testifying at trial" (citation omitted). However, considering that the defendants made their application to elicit the expert testimony on the second day of trial, the court did not improvidently exercise its discretion in precluding the subject testimony. In any event, any error the court may have committed in precluding the subject expert testimony pursuant to CPLR 3101(d)(1) was harmless, as there is no indication that the evidence would have had a substantial influence on the result of the trial (citations omitted).

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Late Exchanged Fact Witness Santana v. 3410 Kingsbridge LLC, 2013 NY Slip Op 06323 (1st Dep’t 2013) First Department reversed trial court grant of summary judgment due to failure of proof of moving party, plaintiff’s creating a question of fact, including the use of an affidavit of her sister identified at plaintiff’s deposition: We note that the affidavit of plaintiff's sister, Angela Bernal, should have been considered by the motion court, since her name and address had been previously made known to defendants by plaintiff at her deposition (citation omitted). The First Department cited a 1985 Second Department decision, Sadler v. Brown, 108 A.D.2d 739, 484 905 (2d Dep’t 1985): The trial court, however, improperly precluded Mr. Liverpool's testimony. Although plaintiff failed to list Mr. Liverpool as a witness in response to defendant's discovery and inspection notice, this same information was provided to defendant during the examination before trial of the plaintiff. Since defendant thus had knowledge of Mr. Liverpool's existence and at least as much knowledge of the significance of his testimony as she would have received in response to the discovery notice, no legitimate claim of surprise could be made (citation omitted). Furthermore, the trial court erred when it held that Mr. Liverpool's testimony would invite undue speculation as to the source of the explosion. With the addition of the evidence contained in Mr. Liverpool's offer of proof, the totality of the evidence adduced by plaintiff, when viewed in a light most favorable to plaintiff, would have been sufficient to establish a prima facie case (citations omitted).

b. Experts Generally Podiatrist Malpractice Experts § 21.07 Amendment to CPLR 3101(d)(iv) to take effect February 17, 2014 L. 2012, ch. 438a mends CPLR §3101(d)(iv) to permit a podiatrist to be called as an expert witness at trial. Effective Date: February 17, 2014. § 5. Paragraph 1 of subdivision (d) of section 3101 of the civil practice law and rules is amended by adding a new subparagraph (iv) to read as follows: © 2013 David Paul Horowitz, All Rights Reserved

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(iv) In an action for podiatric medical malpractice, a physician may be called as an expert witness at trial. § 6. This act shall take effect eighteen months after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of the provisions of this act on its effective date is authorized to be made on or before such effective date. Post-Accident Inspection “Protocols” In Abdur-Rahman v Pollari, 2013 NY Slip Op 4124967 N.Y.S.2d 31 (1st Dep't 2013), Speedy Lube also asserted in the motion that plaintiff had unreasonably objected to protocols it had proposed regarding a scheduled inspection of decedent's car, and sought an order compelling plaintiff to abide by those protocols. Also, because plaintiff retained exclusive control over the vehicle, and had arranged for an expert to inspect it on an ex parte basis, defendant sought disclosure of the identity of the expert, as well as any recordings the expert had made relating to the inspection or any reports the expert had generated. *** The court also granted defendants the relief they sought with respect to inspection of the car, but provided that there would be no destructive testing of the car. *** As for the expert discovery sought by defendants, CPLR 3101(d)(2) only permits the discovery of materials prepared in anticipation of trial "upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Because the condition of the hood latch at the time of the accident will be a key factor in plaintiff's case, the IAS court properly exercised its discretion in ordering plaintiff to identify the expert or experts who performed the ex parte inspection of the vehicle in question. Further, the court properly directed plaintiff to disclose to defendants written materials and recordings made in connection with the inspection (whether photographic, video, or other), since without them defendants will be at a palpable disadvantage and unable to determine whether any spoliation occurred. However, the court should have made clear that plaintiff is only required to disclose those materials that are reasonably capable of shedding light on the precise type of testing plaintiff's expert or experts performed on the hood latch of the car, and of revealing the condition of the latch before and after the testing.

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In Putnam v. Sysco Corp., 101 A.D.3d 1571, 957 N.Y.S.2d 506 (3d Dep’t 2012), defendant argued that plaintiff’s expert’s report should not have been considered on its summary judgment motion because expert was not disclosed prior to plaintiff filing the note of issue. The Third Department held that the argument was not preserved as defendant failed to object to the report on the argued basis before the trial court.

c. Timing Of Summary Judgment Motions First Department Reverses Prior Precedent And Joins Second & Third Departments In Holding Filing Of Note Of Issue Controls; Recipient Of Motion Does Not Get Benefit Of CPLR 2103(b) Five Day Mailing Provision Group IX, Inc. v. Next Printing & Design, Inc., 77 A.D.3d 530, 909 N.Y.S.2d 434 (1st Dep’t 2010) Defendants failed to file their motion within the 120 days specified by CPLR 3212 (a) and offered no reason for the delay. Thus, in its prior order, the court correctly denied the motion as untimely (citation omitted). CPLR 2103 (b) (2), which provides that "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period," is inapplicable to the making of a summary judgment motion, for which the period prescribed by CPLR 3212 (a) is measured not by the service of a paper but by the filing of the note of issue. To the extent that Lucianov. Apple Maintenance & Servs (citation omitted) and Szabo v. XYZ (citation omitted), the cases on which the court relied in altering its determination on reargument, permit a five-day extension of the filing deadline for summary judgment motions pursuant to CPLR 2103 (b) (2), they should not be followed. Luciano and Szabo were decided before the Court of Appeals announced in Brill that courts may not consider the merits of an untimely summary judgment motion for any reason other than "good cause for the delay in making the motion" (citation omitted). In view of the foregoing, we do not reach the parties' arguments as to the merits of the motion. Failure to Comply with CPLR 3212(b)’s Requirement That Motion for Summary Judgment Be Supported with Copy of Pleadings Leads to Dismissal of Motion Weinstein v. Gindi, 92 A.D.3d 526, 938 N.Y.S.2d 538 (1st Dep’t 2012)

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Defendant's motion for summary judgment against a co-plaintiff properly denied for failure to include his answer in the motion for summary judgment, as required by CPLR 3212(b). Premature Summary Judgment Motion Proceeds, Failure To Object Is Waiver Kilmer v. Miller, 96 A.D.3d 1133, 946 N.Y.S.2d 288 (3d Dep’t 2012) Plaintiffs sought to recover damages pursuant to contract in which they sold their property to defendants. Ds moved to dismiss pursuant to CPLR(a)(1) and plaintiffs cross-moved for summary judgment. Court held that “Although plaintiffs cross-motion for summary judgment was made prior to joinder of issue, defendant’s failure to object that motion as untimely constituted a waiver, and the argument could not be raised for the first time on appeal.” Electronic Signature Authorized Martin v. Portexit, 98 A.D.3d 63, 948 N.Y.S.2d 21 (1st Dep’t 2012) Defendant submitted a physician’s affirmation containing an electronic signature and the CPLR 2106. The trial court declined to consider the affirmation, and the First Department held this was error: The motion for reargument was properly granted because the court overlooked the arguments plaintiff initially set forth in opposition to defendants' motion regarding the electronic signatures on the doctors' affirmations (see CPLR 2221[d][2]). However, the court erred in vacating the order on the ground that the affirmations were inadmissable because they bore the electronic signatures of the doctors, and that accordingly, defendants had failed to make a prima facie showing of entitlement to summary judgment. State Technology Law § 304(2) provides that unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand" (citations omitted). CPLR 2106, which provides for affirmations by attorneys, physicians, osteopaths and dentists does not specifically provide that an electronic signature may not be © 2013 David Paul Horowitz, All Rights Reserved

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used and that the signature may only be affixed by hand. In Nadia v. Grunberg (citations omitted) we held that the Legislature "appear[s] to have chosen to incorporate the substantive terms of E-SIGN [Electronic Signatures in Global and National Commerce Act, 15 USC § 7001 et seq.] into New York state law." Notably, E-SIGN provides that where a statute requires a signature to be notarized, acknowledged, verified, or made under oath, "that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included . . . is attached to or logically associated with the signature or record" (15 USC § 7001[g]). In Naldi, we concluded that "E-SIGN'S requirement that an electronically memorialized and subscribed contract be given the same legal effect as a contract memorialized and subscribed on paper" is New York law. We therefore held that the terms "writing" and "subscribed" in General Obligations Law § 5-703 should be construed to include, respectively, electronic communications and signatures (citation omitted). There is no sound reason to treat the term "subscribed" as used in CPLR 2106 any differently than it is used in the statute of frauds. The Second Department's decision in Vista Surgical Supplies, Inc. v. Travelers Ins. Co. (citation omitted), upon which the motion court relied in concluding that the doctors' reports were inadmissible, is unpersuasive, and we decline to follow it. In that case, the Court held that the reports containing the computerized, affixed or stamped facsimiles of the physician's signature failed to comply with CPLR 2106 in that there was no indication as to who placed them on the reports, or any indicia that the signatures were authorized (citation omitted). However, requiring such additional information imports a requirement not contemplated or included in either ESIGN's provision for signatures made under oath (citation omitted), or State Technology Law § 304(2). Additionally, State Technology Law § 306 provides that in any legal proceeding where the CPLR applies, an electronic record or signature may be admitted into evidence pursuant to article 45 of the CPLR. Based upon the foregoing, we conclude that the electronic signatures complied with CPLR 2106, that the affirmations of defendants' medical experts were admissible and that the affirmations should have been considered by the motion court. Copy Properly Submitted Instead Of Original Rechler Equity, LLC v. AKR Corp., 98 A.D.3d 496, 949 N.Y.S.2d 457 (2d Dep’t 2012) Second Department held trial court’s denial of plaintiff’s motion for summary judgment because the affidavits submitted in support thereof were not “originally” signed. The court noted that CPLR 2101, entitled “Forms of papers,” specifically states,

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at section (e) thereof, that “copies, rather than originals, of all papers, including . . . affidavits . . . may be served or filed.” Absence Of CPLR 2309(c) Certificate Of Conformity Not A Fatal Defect Fredette v. Town of Southhampton, 95 A.D.3d 939, 943 N.Y.S.2d 760 (2d Dep’t 2012) CPLR 2309(c) provides: § 2309. Oaths and affirmations. (c) Oaths and affirmations taken without the state. An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation. The Second Department held that a trial court improvidently exercised its discretion in excluding from consideration affidavits on the ground that the affidavits, while notarized, were not accompanied by a certificate of conformity required by CPLR 2309(c). The Second Department observed: “This Court has previously held that the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect, a view shared by the Appellate Division, First and Third Departments as well.” Prenuptial Agreement Set Aside Due To Defective Certificate Of Acknowledgement Galetta v. Galetta, 2013 NY Slip Op 03871 (2013) In Galetta, a prospective bride and groom executed a prenuptial agreement shortly before their wedding. Each signed the agreement, and each signature was notarized. In the litigation that ensued after the husband filed for divorce, the wife sought to set aside the prenuptial agreement. It was undisputed that both parties’ signatures on the document were authentic, and that the agreement, prepared by the husband’s attorney (the wife elected not to be represented by counsel), was not procured by fraud or duress

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While the signatures on the prenuptial agreement were on a singe page, the parties had executed the agreement at different times, before different notaries, and neither was present when the other executed the document.18 Up to this point, the execution was not subject to attack. The Court of Appeals zeroed in on the certificates of acknowledgement that accompanied each signature: The certificates appear to have been typed at the same time, with spaces left blank for dates and signatures that were to be filled in by hand. The certificate of acknowledgment relating to [the wife's] signature contains the boilerplate language typical of the time. However, in the acknowledgment relating to [the husband's] signature, a key phrase was omitted and, as a result, the certificate fails to indicate that the notary public confirmed the identity of the person executing the document or that the person was the individual described in the document. The record does not reveal how this error occurred and apparently no one noticed the omission until the issue was raised in this litigation.19 Domestic Relations Law § 236(B)(3)20 requires that prenuptial agreements be executed with the same formality as a recorded deed,21 and the certificate of acknowledgment accompanying the husband's signature did not comply with the requirements of the Real Property Law.22 It was upon this error that the wife sought a declaration that the agreement was unenforceable. The husband argued that the agreement was enforceable because “the acknowledgment substantially complied with the Real Property Law:”23 [The husband] submitted an affidavit from the notary public who had witnessed his signature in 1997 and executed the certificate of acknowledgment. The notary, 18

Galetta v. Galetta, 2013 NY Slip Op 03871 (2013). Id. 20 D.R.L. §236(B)(3) provides, in pertinent part: 19

Agreement of the parties. An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. 21

Galetta v. Galetta, 2013 NY Slip Op 03871 (2013). Galetta v. Galetta, 2013 NY Slip Op 2831 (2013). 23 Id. 22

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an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband's signature.24 The trial court denied the wife’s motion for summary judgment, finding that the “acknowledgment of the husband's signature substantially complied with the requirements of the Real Property Law.”25 On appeal, three justices of the Fourth Department affirmed, but upon a different rationale, holding: [T]hat the certificate of acknowledgment was defective but [that] deficiency could be cured after the fact and that the notary public affidavit raised a triable question of fact as to whether the prenuptial agreement had been properly acknowledged when it was signed in 1997.26 The two dissenters, believing first that the husband’s argument was unpreserved, would have granted summary judgment to the wife, “declaring the prenuptial agreement to be invalid because the acknowledgment was fatally defective.”27 A unanimous Court of Appeals28 reversed, determining that the wife “was entitled to summary judgment declaring the prenuptial agreement to be unenforceable.”29 The Court first examined the language of D.R.L. §236(B)(3) and reviewed its 1997 decision in Matisoff v. Dobi,30 where the Court held that an unacknowledged prenuptial agreement was invalid. The Court next examined the acknowledgement procedure set forth in R.P.L. §291, the procedure D.R.L. §236(B)(3) requires for proper execution: Real Property Law § 291, governing the recording of deeds, states that "[a] 24

Id. Id. 26 Id. 27 Id. 28 Judge Abdus-Salaam took no part in the case. 29 Galetta v. Galetta, 2013 NY Slip Op 2831 (2013).. 30 90 N.Y.2d 127, 681 N.E.2d 376, 659 N.Y.S.2d 209 (1997). 25

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conveyance of real property . . . on being duly acknowledged by the person executing the same, or proved as required by this chapter, . . . may be recorded in the office of the clerk of the county where such real property is situated." Thus, a deed may be recorded if it is either "duly acknowledged" or "proved" by use of a subscribing witness. Because this case involves an attempt to use the acknowledgment procedure, we focus on that methodology. The Court explained that the acknowledgment procedure achieves two goals. First, to prove the identity of the person whose name and signature appears on the document and, second, “[to impose] on the signer a measure of deliberation in the act of executing the document.”31 The Court turned to the specific issues at bar, to wit, “whether the certificate of acknowledgment accompanying defendant husband's signature was defective”32 and, if the certificate was defective, “whether such a deficiency can be cured and, if so, whether the affidavit of the notary public prepared in the course of litigation was sufficient to raise a question of fact precluding summary judgment in the wife's favor.”33 The Court noted that three provisions of the R.P.L. “must be read together to discern the requisites of a proper acknowledgment, ”34 §§292, 303, and 306, and discussed the prevailing practice in 1997, when the document was executed, for certificates of acknowledgement: At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife's signature: "before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same." The "to me known and known to me to be the person described in the document" phrase satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document. The clause beginning with 31

Id. Id. 33 Id. 34 Id. 32

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the words "and duly acknowledged . . ." established that the signer had made the requisite oral declaration.35 This language was omitted in the certificate accompanying the husband’s signature: In the certificate of acknowledgment relating to the husband's signature, the "to me known and known to me" phrase was inexplicably omitted, leaving only the following statement: "On the 8 [sic] day of July, 1997, before me came Gary Galetta described in and who executed the foregoing instrument and duly acknowledged to me that he executed the same." Absent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement. Determining that the acknowledgement did not conform to the statutory requirements, the Court next considered whether the defect could be cured, and whether the notary public’s affidavit submitted to the trial court created a question of fact precluding summary judgment.36 The Court distinguished Galetta from Matisoff, the earlier case where there was no acknowledgement,37 because in Galetta “there was an attempt to secure an acknowledged document but there was an omission in the requisite language of the certificate of acknowledgment.”38 The Court acknowledged that: A compelling argument can be made that the door should be left open to curing a deficiency like the one that occurred here where the signatures on the prenuptial agreement are authentic, there are no claims of fraud or duress, and the parties believed their signatures were being duly acknowledged but, due to no fault of their own, the certificate of acknowledgment was defective or incomplete. Although neither party submitted evidence concerning how the error occurred, we can infer from the fact that the signatures and certificates of acknowledgment are contained on a single page of the document in the same typeface that the certificates were typed or printed by the same person at the same time. Since one acknowledgment included all the requisite language and the other did not, it 35

Id. (footnote omitted). Id. The Court rejected the wife’s argument that the issue was not preserved. 37 The Court explained: “When there is no acknowledgment at all, it is evident that one of the purposes of the acknowledgment requirement — to impose a measure of deliberation and impress upon the signer the significance of the document — has not been fulfilled. Thus, a rule precluding a party from attempting to cure the absence of an acknowledgment through subsequent submissions appears to be sound. 38 Id. 36

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seems likely that the omission resulted from a typographical error. Thus, the deficiency may not have arisen from the failure of the notary public to engage in the formalities required when witnessing and acknowledging a signature. To the contrary, it may well be that the prerequisites of an acknowledgment occurred but the certificate simply failed to reflect that fact. Thus, the husband makes a strong case for a rule permitting evidence to be submitted after the fact to cure a defect in a certificate of acknowledgment when that evidence consists of proof that the acknowledgment was properly made in the first instance — that at the time the document was signed the notary or other official did everything he or she was supposed to do, other than include the proper language in the certificate. By considering this type of evidence, courts would not be allowing a new acknowledgment to occur for a signature that was not properly acknowledged in the first instance; instead, parties who properly signed and acknowledged the document years before would merely be permitted to conform the certificate to reflect that fact.39 Unfortunately for the husband, the Court never arrived at considering whether a cure was possible: [S]imilar to what occurred in Matisoff, the proof submitted here was insufficient. In his affidavit, the notary public did not state that he actually recalled having acknowledged the husband's signature, nor did he indicate that he knew the husband prior to acknowledging his signature. The notary averred only that he recognized his own signature on the certificate and that he had been employed at a particular bank at that time (corroborating the husband's statement concerning the circumstances under which he executed the document). As for the procedures followed, the notary had no independent recollection but maintained that it was his custom and practice "to ask and confirm that the person signing the document was the same person named in the document" and he was "confident" he had done so when witnessing the husband's signature.40 The Court concluded: [E]ven assuming a defect in a certificate of acknowledgment could be cured under Domestic Relations Law § 236(B)(3), defendant's submission was insufficient to raise a triable question of fact as to the propriety of the original acknowledgment procedure. Plaintiff was therefore entitled to summary judgment declaring that the prenuptial agreement was unenforceable.

39

Id. Id. The Court discussed in detail the deficiencies in proof, and how those defects might have been overcome.

40

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VIII. Ethics Developments CPLR 8001 Witness Fees Caldwell v. Cablevision System Corp., 86 A.D.3d 46, 925 N.Y.S.2d 103 (2d Dep’t 2011); leave granted 2012 N.Y. LEXIS 90, 2012 NY Slip Op 61167 (2012); affirmed 2013 NY Slip Op 00783 (2013). The Second Department held that, while CPLR 8001(a) does not bar compensation to a fact witness in excess of $15.00 per day and payment for travel expenses in excess of 23 cents per mile, the trial court erred, nonetheless, when it failed to charge that the witness’ testimony was suspect based upon the amount of the payment to the witness. The physician’s fee to testify at trial was $10,000. After a lengthy analysis of the applicable rules and policy concerns, the Second Department concluded: In this case, the Supreme Court properly allowed the plaintiffs' counsel to crossexamine Dr. Krosser without limitation regarding the $10,000 payment that was made to him, and also properly permitted counsel to adequately address the issue in summations. The Supreme Court erred, however, in denying the plaintiffs' request for an explicit instruction to the jury regarding witness compensation. While the Supreme Court instructed the jury that it should consider bias or prejudice in determining the weight to be given to any particular witness's testimony, this general charge was insufficient under the circumstances. Just as a jury that hears testimony in a criminal trial from a witness who is testifying in exchange for a promise of leniency is given a specific instruction regarding the possibility of bias (citation omitted), we conclude that, in light of the important public policy considerations concerning fees paid to fact witnesses, more than the general credibility charge is also warranted where, as here, a reasonable inference can be drawn that a fact witness has been paid an amount disproportionate to the reasonable value of his or her lost time. In crafting an appropriate instruction, trial courts should bear in mind the general principles regarding fact-witness testimony heretofore discussed, including a fact witness's public duty to testify for the statutory fee of $15; the permissibility of voluntary compensation for the reasonable value of time spent in testifying; the goal of drawing the line between compensation that merely eases the burden of testifying and that which tends to unintentionally influence testimony; the inference, which may be drawn from the disproportionality of the payment to the reasonable value of lost time, that a fee for testimony has been paid; and the potential for unconscious bias that such a fee may create (citations omitted).

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On appeal to the Court of Appeals, that Court framed the issue on appeal and its holding affirming the Second Department: At issue on this appeal is whether the testimony of a subpoenaed fact witness, who receives a fee alleged to be disproportionately in excess of CPLR 8001 (a)'s mandatory fee requirement for attendance at trial, is inadmissible as a matter of law. We conclude that such testimony is generally admissible, but that the trial court should, in a proper case, charge the jury as to the witness's potential bias, in light of the perceived excessiveness of the fee. Where, as here, the party that subpoenaed the witness offers no explanation for a fee that is seemingly in excess of reasonable compensation for lost time and incidental expenses, the trial court, upon a timely request by an objecting party, must charge as to the witness's potential bias. The Court gave a detailed recitation of the facts of the case and the progress of the trial: In September 2006, defendant Communications Specialists, Inc. (CSI), per its contract with Cablevision Systems Corporation, began the installation of highspeed fiber-optic cable underneath Benefield Boulevard in Peekskill, New York. The work required CSI to cut a two-foot-deep and four- or-five-inch-wide trench along the entire length of the 3,000- foot street. CSI also dug 58 one-foot-wide "test pits" in certain locations adjacent to the trench in order to locate pre-existing utility lines. CSI backfilled the trench and test pits but, at the time of the incident giving rise to this action, the street had not been re-paved. On October 11, 2006 at approximately 10:00 p.m., plaintiff Bessie Caldwell, who resided on Benefield Boulevard, took her dog out for a walk. She crossed Benefield Boulevard and walked the dog for a short distance. As she was crossing the street again, returning to her residence, plaintiff tripped and fell, injuring her leg. Plaintiff and her husband (suing derivatively) commenced this negligence action against, among others, CSI for creating a hazardous and unsafe condition in the road by failing to properly backfill the trench and test pits, failing to properly or adequately pave over those areas, and failing to install temporary asphalt. After CSI answered and the parties conducted discovery, the matter proceeded to a bifurcated trial with liability being tried first. Plaintiff testified that she stepped into a "dip in the trench" that caused her to fall. To rebut this testimony, CSI subpoenaed a physician who had treated plaintiff in the emergency room shortly after the accident. The doctor was called merely as a fact witness to testify concerning his entry in the "history" section of his consultation note that plaintiff "tripped over a dog while walking last night in the rain." He testified consistently with his documented note. During cross© 2013 David Paul Horowitz, All Rights Reserved

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examination, plaintiff's counsel elicited from the doctor that CSI had paid him $10,000 for appearing and testifying. The doctor denied that his testimony was influenced by the payment, stating simply that he was there to "testify to my records." His testimony consisted only of his verification that he made the entry into the emergency room record. No professional opinion was sought nor given. Plaintiff's counsel requested that the court strike the doctor's entire testimony or, in the alternative, issue either a curative instruction or a jury charge concerning monetary influence. The Court continued with the plaintiff’s request for a charge tailored to the doctor’s testimony: The following day, before summations, plaintiff's counsel asked that the court charge the jury that, pursuant to CPLR 8001, the doctor, as a fact witness, was entitled to a witness fee of $15 per day and $.23 per mile to and from the place where he was served with the subpoena. Defense counsel countered that the witness fee was the statutory minimum and that there was no prohibition against paying a fact witness for time missed from work. The court suggested that, rather than issuing a charge, the parties could address the issue during summation and the jury could draw whatever inference it wished from those facts. The court cautioned the parties against referencing the statutory criteria of CPLR 8001. After summations, where the parties addressed the doctor's fee payment in detail, the court gave the jury a general bias charge but made no specific reference to the doctor's testimony or the payment he received for appearing at trial. Following deliberations, the jury found CSI negligent, but that such negligence was not a substantial factor bringing about the accident. Supreme Court denied plaintiff's motion to set aside the verdict. The Appellate Division affirmed, holding that although CSI's "substantial payment" to the doctor did not warrant exclusion of his testimony, Supreme Court erred in failing "to adequately charge the jury regarding the suspect credibility of factual testimony by a paid witness," but that reversal was not required because the error was harmless (citation omitted). The Court explained its concern with the witness fee paid to the physician: We, like the Appellate Division, are troubled by what appears to be a substantial payment to a fact witness in exchange for minimal testimony. Such payments, when exorbitant as compared to the amount of time the witness spends away from work or business, create an unflattering intimation that the testimony is being bought or, at the very least, has been unconsciously influenced by the compensation provided. While we are concerned by the amount the witness was paid for this minimal attendance and testimony, we conclude that the Appellate Division's order should be affirmed under the circumstances of this case. CPLR 8001 (a) provides that one who is compelled by subpoena to appear at trial is entitled to a $15 daily attendance fee and $.23 per mile in mileage fees. Although this is only the minimum that must be paid to a subpoenaed fact © 2013 David Paul Horowitz, All Rights Reserved

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witness, that does not mean that an attorney may pay a witness whatever fee is demanded, however exorbitant it might be. Our courts and disciplinary rules have long acknowledged that "[t]o procure the testimony of witnesses it is often necessary to pay the actual expenses of a witness in attending court and a reasonable compensation for the time lost" (citation omitted). "[T]here are [also] many incidental expenses in relation to the prosecution or defense of an action at law which can with propriety be paid by a party to the action" (citations and parentheticals omitted). What is not permitted and, in fact, is against public policy, is any agreement to pay a fact witness in exchange for favorable testimony, where such payment is contingent upon the success of a party to the litigation (citation and parenthetical omitted). Of course, that situation is not presented here. The doctor's testimony was limited to what he had written on his consultation note less than 12 hours after the accident and well before plaintiff commenced litigation. Nor can it be argued that the doctor tailored his testimony in exchange for the fee or that there is any record evidence that the doctor's consultation note was fabricated. Plaintiff argues that, having been subpoenaed, the doctor had a legal duty to appear and a legal right to only a $15 attendance fee, and because he was paid in excess of that amount, Supreme Court should have stricken his testimony. That argument, however, is without merit since the fee set forth in CPLR 8001 (a) is a minimum fee (citation and parenthetical omitted). Nonetheless, the payment of such a disproportionate fee for a short amount of time at trial is troubling, and the distinction between paying a fact witness for testimony and paying a fact witness for time and reasonable expenses can easily become blurred. A line must therefore be drawn "between compensation that enhances the truth seeking process by easing the burden on testifying witnesses, and compensation that serves to hinder the truth seeking process because it tends to 'influence' witnesses to 'remember' things in a way favorable to the side paying them" (citation omitted). The Court concluded that a specific bias charge should have been fashioned by the trial court to address the compensation paid to the witness: In addition to asking the trial court to strike the doctor's testimony, plaintiff's counsel asked the court to charge the jury that, per the subpoena, the doctor was required by law to appear at trial and was entitled to a $15 attendance fee and $.23 per mile and "let [the jury] do with it what they will." This was tantamount to a charge request for a special jury instruction relative to the doctor's potential bias. We agree with plaintiff that Supreme Court should have issued a bias charge specifically tailored to address the payment CSI made to the doctor. Supreme Court generally instructed the jury that bias or prejudice was a consideration that it should consider in weighing the testimony of any of the witnesses, but this was insufficient as it pertained to CSI's payment to the doctor. To be sure, Supreme Court properly acted within its discretion in concluding that the fee payment was © 2013 David Paul Horowitz, All Rights Reserved

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fertile ground for cross-examination and comment during summation. But because CSI did not even attempt to justify the $10,000 payment for one hour of testimony, Supreme Court should have also crafted a charge that went beyond the CPLR 8001 requirements. Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness's time from work or business. Should the jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness's testimony (citation omitted). Of course, such a charge must be requested in a timely fashion. Additionally, it is within the trial court's discretion to determine whether the charge is warranted in the context of a particular payment to a witness, and to oversee how much testimony should be permitted relative to the fact witness's lost time and other expenses for which he is being compensated. We conclude that, although a more specific jury charge should have been given, Supreme Court's failure to issue one in this case was harmless. The dispute underlying the doctor's testimony was not whether he fabricated the contents of the consultation note. In other words, the substance of the doctor's testimony was such that the jury's assessment was only tangentially related to the doctor's credibility.

Recent NYSBA Ethics Opinions Trash Talk Permitted COMMITTEE ON PROFESSIONAL ETHICS Opinion 912 (3/15/12) Topic:

Publishing criticism of other attorneys

Digest: The Rules of Professional Conduct do not prohibit a lawyer from hosting or participating in a blog dedicated to publishing factually accurate criticism of another lawyer’s professional conduct. Rules:

8.2, 8.3, 8.4

QUESTION 1. May a lawyer host or participate in an internet blog established as a forum for lawyers to recount their experiences in dealing with an adversary whose past professional conduct is considered by them to have been unethical, harassing or abusive? OPINION © 2013 David Paul Horowitz, All Rights Reserved

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2. Although Rule 8.2 of the New York Rules of Professional Conduct (the “Rules”) expressly addresses lawyer criticism of judges (“A lawyer shall not knowingly make a false statement of fact concerning the qualifications, conduct or integrity of a judge or other adjudicatory officer or of a candidate for election or appointment to judicial office”), there is no comparable provision that specifically addresses public criticism of a lawyer by a lawyer. Therefore, any ethical restraint on such expression would, under the Rules, necessarily derive from the more general provisions of Rule 8.4(c), prohibiting a lawyer from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentations”, or Rule 8.4 (d), prohibiting a lawyer from engaging in conduct that is “prejudicial to the administration of justice.” 3. Assuming that the blog criticism is sufficiently accurate and in context not to run afoul of Rule 8.4(c), the question is whether there are any limitations arising from Rule 8.4(d) on a lawyer’s factually sustainable public criticism of another lawyer. We believe there are none. Still, we add two observations: 4. First, the “Standards of Civility” adopted for the Uniform Court System provide: “Whether orally or in writing, lawyers should avoid vulgar language, disparaging personal remarks or acrimony towards other counsel, parties or witnesses.” 22 NYCRR part 1200, App. A, I(B). Although these standards are aspirational, and not intended as rules to be enforced by sanction or disciplinary action, they nonetheless elaborate a norm of acceptable behavior that excludes gratuitous vulgarity, disparagement and vituperation. We also urge the inquirer “to avoid petty criticisms, and to make critical statements only when motivated by a desire to improve the quality of . . . the legal system in general, and then to present his [or her] views only in a temperate, dignified manner.” Cf. N.Y. City 1996-1 (holding a lawyer may write an article containing wellfounded criticisms of a sitting judge for abusive and intemperate trial conduct, notwithstanding that New York State Commission on Judicial Conduct found no cause for pursuing an investigation into the same allegations of misconduct). 5. Second, Rule 8.3(a) imposes a reporting requirement upon a lawyer who “knows that another lawyer has committed a violation of the Rules . . . that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.” To the extent that the negative information to be published about an attorney’s professional conduct is both significant and truthful, Rule 8.3(a) may require reporting such misconduct to a “tribunal or other authority empowered to investigate or act upon such violation.” CONCLUSION 6. The Rules of Professional Conduct do not prohibit a lawyer from hosting or participating in a blog dedicated to publishing factually accurate criticism of another lawyer’s professional conduct. © 2013 David Paul Horowitz, All Rights Reserved

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Equity Interest In Client’s Business Committee on Professional Ethics Opinion 913 (3/22/12) Topic:

Acceptance of Securities as a Legal Fee

Digest: A lawyer may accept an equity interest in a client if the lawyer complies with the Rule of Professional Conduct governing business transactions with clients and the acceptance does not otherwise create a conflict for the lawyer or result in an excessive fee. Rules:

1.5(a), 1.7(a), 1.7(b), 1.8(a)

QUESTION [1] The inquiring lawyer asks whether a lawyer may accept as compensation for legal services a hybrid fee combining a reduction in the lawyer’s customary hourly time charges with an equity interest in the client or the client’s company. Subject to the caveats below, we conclude that the Rules of Professional Conduct do not invariably proscribe such a fee arrangement. OPINION [2] The Rules of Professional Conduct do not confine a lawyer to charging a legal fee based on an hourly rate or other time-based metric. The principal general limit on a lawyer’s compensation for legal services is that, under Rule 1.5(a), a lawyer may not accept a fee the amount of which, upon review of the facts, would leave a reasonable lawyer “with a definite and firm conviction that the fee is excessive.” Among the facts that Rule 1.5(a) identifies as relevant are the time, labor, and skill required; the novelty and difficulty of the services requested; the lawyer’s inability, by reason of the representation, to represent other clients; the amount at stake and the results the lawyer achieves; the fee typically charged for comparable services in the locality where the lawyer practices; the time period in which the lawyer must complete the assignment; the lawyer’s experience and reputation; and whether the fee is fixed or contingent. It follows from Rule 1.5(a) that any or all of these factors may properly influence the fee a lawyer charges for legal services. ABA 11-458. [3] The inquiry poses the question whether Rule 1.5 alone governs when the lawyer’s fee consists, in whole or in part, of an equity interest in the client or client’s company. Whether a lawyer’s acceptance of securities as a legal fee implicates issues under federal or state securities laws or other statutory regimes is a question beyond the scope of this Committee’s charter. If a lawyer’s acceptance of such consideration as a fee is legally permissible, then in our view it is necessary to go beyond Rule 1.5. The starting point for analysis is found in Rule 1.8(a), which provides: © 2013 David Paul Horowitz, All Rights Reserved

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A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise professional judgment therein for the protection of the client, unless: (1) the transaction is fair and reasonable to the client and the terms of the transaction are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. [4] Rule 1.8(a) invites a twofold inquiry. The first is whether the transaction itself is one in which the lawyer and client have differing interests and in which the client expects the lawyer to exercise the lawyer’s independent professional judgment on the client’s behalf. If the answers are yes, then, as a second step, the lawyer must assure that the terms are fair and reasonable to the client and fully disclosed in a writing that includes not only the deal’s essential terms and the lawyer’s role in shaping them, but also the desirability of the client seeking independent legal advice. [5] The applicability of Rule 1.8(a) to fee arrangements in which a lawyer accepts an equity interest in the client is not self-evident. Every fee arrangement with a client is in a literal sense a business transaction with that client. At the outset of the representation, a prospective client and a lawyer obviously have “differing interests” in negotiating the lawyer’s fee. But the second threshold condition of Rule 1.8(a) is less obvious. The language in the New York version of Rule 1.8(a), as in its predecessor DR 5-104, makes its application contingent on the client’s expectation that the lawyer is exercising independent professional judgment on the prospective client’s behalf in negotiating the lawyer’s fee arrangement. For this reason, some authorities opined that Rule 1.8(a)’s predecessor in the Code of Professional Responsibility was not meant to apply to fee arrangements formed at the start of the representation, that is, before an attorney-client relationship formally exists. C. Wolfram, Modern Legal Ethics § 8.11.1 at 481-82 (1986) (fiduciary standard arises only after relationship is formed); N.Y. City 88-7 (1988) (establishing the attorney-client relationship is not a business transaction under Code). [6] Nevertheless, we conclude that Rule 1.8(a) applies to negotiation of a fee in which a lawyer is to receive an equity interest in a client or the client’s company. Comment [4C] accompanying Rule 1.8(a) says in relevant part:

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This Rule also does not apply to ordinary fee arrangements between client and lawyer reached at the inception of the client-lawyer relationship, which are governed by Rule 1.5. The requirements of the Rule ordinarily must be met, however, when the lawyer accepts an interest in the client’s business or other nonmonetary property as payment of all or part of the lawyer’s fee. For example, the requirements of paragraph (a) must ordinarily be met if a lawyer agrees to take stock (or stock options) in the client in lieu of cash fees. Such an exchange creates a risk that the lawyer’s judgment will be skewed in favor of closing a transaction to such an extent that the lawyer may fail to exercise professional judgment as to whether it is in the client’s best interest for the transaction to close. This may occur where the client expects the lawyer to provide professional advice in structuring a securities-for-services exchange. If the lawyer is expected to play any role in advising the client regarding the securities-for-services exchange, especially if the client lacks sophistication, the requirements of fairness, full disclosure and written consent set forth in paragraph (a) must be met. [7] In the common situation involving the offer of an equity interest as a legal fee, of which the inquirer is an example, the client is a nascent venture lacking a public market and offering consideration of indeterminate value and liquidity in lieu of cash. In these instances, it is not at all unreasonable to suppose that the client looks to the lawyer for independent judgment. In contrast to the improbable scenario of a sophisticated public-company client offering its openlytraded stock for a fee, the more characteristic offeror is a cash-poor entrepreneur in quest of capital to launch a business. Acceptance of stock as a fee enables the entrepreneur to obtain legal advice for the venture and exhibits the lawyer’s confidence in the client’s chances. The client may be looking to the lawyer for independent judgment on forming the enterprise with an eye toward an eventual public offering. These are the circumstances in which Rule 1.8(a) plays an important role. But see Rule 1.8(a) Cmt. [4B] (the Rule does not apply to “standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others,” for instance a lawyer obtaining a mortgage from a bank the lawyer represents on other matters). [8] Neither the Model Rules of Professional Conduct nor the Rules as adopted in the majority of jurisdictions prefaces the application of Rule 1.8(a) as explicitly as does New York’s to those circumstances in which the client expects the lawyer to exercise independent professional judgment on the client’s behalf. Still, it matters that every recent opinion to consider the question has said that Rule 1.8(a) or its predecessor, with or without New York’s preamble, applies to transactions in which a lawyer accepts an equity interest as part or all of a legal fee. E.g., ABA 00-418; D.C. Opinion 300 (2000); N.Y. City 2000-3 (with some qualification and calling it the “prudent” course in all events); Pennsylvania Opinion 2001-100; Utah Opinion 98-13; see II RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 126 cmt. A, at 323 (2000) (more restrictive rules “when a lawyer takes an interest in the client’s business as payment of all or part of a legal fee”); I G. Hazard & W. Hodes, The Law of Lawyering § 12.5 at 12-15 (2005-2 Supp.) (both Rules 1.5 and 1.8 “are applicable © 2013 David Paul Horowitz, All Rights Reserved

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when a lawyer contracts to receive all or part of her fee in the form of an interest in the client’s venture”); MODEL RULES OF PROFESSIONAL CONDUCT 1.8, cmt. a.; cf. Iowa Supreme Court Attorney Disciplinary Board v. Kaiser, 736 N.W.2d 544, 2007 Iowa Sup. LEXIS 93 (2007) (suspending lawyer for acquiring equity interest in client without compliance with DR 5-104 as written in New York). [9] A recent decision of the Appellate Division in the First Department supports this conclusion. In Matter of Ioannou¸ 2011 NY Slip Op 7942, 2011 N.Y. App Div. LEXIS 7792 (Nov. 10, 2011), the Court suspended a lawyer for three months for borrowing money from a former client without heed to the requirements of DR 5-104(a), of which Rule 1.8(a) is a copy. There, the lawyer had represented the client in obtaining a very favorable settlement of a personal injury action. A year later, the onetime client asked the lawyer for some advice about an aspect of the settlement. Two weeks after giving this advice, the lawyer solicited and obtained an interest-free loan from the onetime client. While stressing that DR 5-104(a) (and thus presumably Rule 1.8(a)) does not necessarily “apply to every transaction with a former client,” the Court ruled that the “former client’s relative lack of sophistication in business matters, the personal nature of the former professional relationship, the importance to the former client of the matter in which the [lawyer] represented him, and the fact that the former client had sought [the lawyer’s] advice on a matter related to the former representation only about two weeks before [the lawyer] proposed the transaction” created a reasonable expectation on the former client that the lawyer would be exercising independent professional judgment for the lender in the transaction. See Schlanger v. Flaton, 218 A.D.2d 597 (1st Dep’t 1995) (granting summary judgment for client rescinding equity interests and shareholder agreements that lawyer obtained in violation of DR 5-104(A)). [10] We therefore join other ethics committees and authorities in concluding that a lawyer who wishes to accept an equity interest in a client must comply with the provisions of Rule 1.8(a). This means that the terms of the transaction must be fair and reasonable to the client, fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client, with the client being advised of the desirability of seeking independent legal advice and given a reasonable chance to do so, and the client signing a writing that describes the transaction and the lawyer’s role in the deal, including whether the lawyer was acting for the client in the matter. [11] Whether particular terms are “fair and reasonable” to the client is a factspecific inquiry for which general rules are of limited aid. If there is a market for the stock, be it public or private, the market may offer a fair and reasonable measure. In some instances, comparisons may offer guidance if other professionals are providing so-called “sweat equity.” In the absence of some third-party yardstick, some of the criteria set forth by the Utah Ethics Committee, in its Opinion 98-13, may usefully influence the fairness and reasonableness of the transaction, among them the liquidity of the stock or the risks that the stock © 2013 David Paul Horowitz, All Rights Reserved

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may remain illiquid for the foreseeable future; the present and anticipated value of the stock, including the value of any intellectual property that the enterprise may own or control and the risks of adverse regulatory or judicial rulings affecting those values; any restrictions placed on the securities by law or contract; the percentage ownership of the enterprise that the securities now or in the future (e.g., if the currency is warrants or options) may represent; and, as a related matter, whether the lawyer’s stake in the company is passive, the opportunities for control or participation in management, and the structural restrictions on such matters. To these must be added the factors, listed above, identified in Rule 1.5(a). [12] Whether a transaction in securities may be deemed “fair and reasonable” under Rule 1.8(a) is analytically distinct from whether the fee may be “excessive” under Rule 1.5(a), see Rule 1.8(a) Cmt. [4F], though in the end the relevant considerations are substantially similar. Unless some obvious metric exists to assess the fairness and reasonableness of a securities transaction as a legal fee, the resolution of that issue is unlikely to be amenable to any fixed determination. We agree with the ABA that, “[f]or purposes of judging the fairness and reasonableness of the transaction and its terms,” the controlling consideration should be “the circumstances reasonably ascertainable at the time of the transaction.” ABA 00-418. The same is true of any assessment of whether the fee may be considered “excessive” under Rule 1.5(a). “An equity stake in a corporation that turns out to be successful might seem excessive in relation to the services rendered if the value is determined only after the success is achieved.” N.Y. City 2000-3. “But to make the evaluation at that end point – and with the wisdom of hindsight – would not value the fee that the client agreed to pay or the lawyer accepted, because it would eliminate the risk that the lawyer undertook that the venture would fail and the securities, i.e., the fee, would have little or no value.” Id. For this reason, we believe that whether a fee is excessive under Rule 1.5(a) is an assessment about the value of the fee at the time the fee is set. Accord I RESTATEMENT § 34 cmt. c at 250; id. § 126 cmt a. [13] Another separate but very important question is whether the business transaction involving the acceptance of an equity interest as a legal fee occasions a conflict of interest between the lawyer and the client. Rule 1.7(a) prohibits a lawyer from undertaking an engagement if “a reasonable lawyer would conclude” that there is a “significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” Rule 1.7(b) qualifies this prohibition by allowing to proceed if the “lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation.” See Rule 1.8(a) Cmt. [4D] (explaining reasons for concern about conflicts arising from equity interests). Rule 1.7(b) requires also that the lawyer obtain the client’s informed consent, which may involve information beyond that required by Rule 1.8(a). See Rule 1.8(a), Cmt. [4E]. [14]

Subject to this proviso, if the lawyer concludes that the lawyer may

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competently and diligently represent the client in the matter, then the lawyer may do so upon the client’s fully informed consent. We believe that this informed consent requires disclosure of, among other things, the risks inherent in the representation of a client by a lawyer with a personal financial stake at risk, including the chance that the financial interests could affect the lawyer’s judgment; the conflicts that could emerge from the possible tension between lawyer as counselor and lawyer as stockholder; and the risks that privileges could be in jeopardy unless the communications between the two concern confidential legal advice.[1] CONCLUSION [15] In sum, a lawyer may accept an equity interest in a client or a client’s company if the terms and conditions of the business transaction are fair and reasonable to the client, fully disclosed to the client in a writing the client may readily understand that advises the client of the desirability of seeking, and gives the client the reasonable chance to seek, independent professional counsel, and the client consents in a writing signed by the client that fully discloses the terms of the transaction and the lawyer’s role in the matter. Lawyer As Broker May Not Offer Free Legal Services To Party To Transaction Committee on Professional Ethics Opinion 916 (3/27/12) Topic: Lawyer’s provision of free legal services when lawyer is also broker in a real estate transaction. Digest: A lawyer may not offer free legal services as an add-on bonus to a party to a real estate transaction in which the lawyer is acting as broker, even if the lawyer advises the party that the party may retain separate counsel. Rules: 1.7(a) QUESTION 1. The inquiring lawyer asks whether a lawyer may serve as a real estate broker in a transaction, and be paid for that service, while also offering free legal services on contract and other legal matters in the same transaction with the disclosure that the client is free, if the client so chooses, to retain a separate attorney to represent the client in the transaction. For the reasons set forth below, our answer is no. OPINION 2.

In N.Y. State 752 (2003), we wrote:

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“In a number of opinions that this committee has issued over the years, we have opined that in certain circumstances a lawyer also engaged in a nonlegal business cannot provide both legal and nonlegal services in the same transaction even with the consent of the client. Brokerage businesses are a salient example. We held in N.Y. State 208 (1971), N.Y. State 291 (1973), N.Y. State 340 (1974), and N.Y. State 493 (1978), that a lawyer could not act as a lawyer in the same transaction in which the lawyer or his or her spouse acted as a real estate broker “because of the possible conflict between his client's and his own personal interest.” N.Y. State 208 (1971). Accord N.Y. County 685 (1991); see also N.Y. State 694 (1997) (impermissible to participate in broker-run home buyer's program because of resulting strong interest in broker's success).” 3. The rationale of these opinions is that the broker's personal and financial interest in closing the transaction interferes with the lawyer's ability to render independent advice with respect to the transaction consistent with the principles now embodied in Rule of Professional Conduct 1.7(a). Otherwise put, the problem primarily stems not from the fee the lawyer receives from rendering purely legal advice, but from the separate and independent financial interest of the lawyer/broker arising from compensation for the non-legal services. In our judgment, that financial interest would create an influence that informed consent cannot relieve. We have reached similar conclusions with respect to insurance brokers and securities brokers. N.Y. State 536 (1981); N.Y. State 619 (1991). See also N.Y. State 595 (1988); N.Y. State 621 (1991); N.Y. State 738 (2001) (dual role of lawyer for real estate client and abstract title examiner impermissible because of possible need to negotiate exceptions to title). 4. Accordingly, an offer of free legal services on top of the non-legal services a lawyer proposes to render does not remedy the ill at the heart of our prior opinions. A client’s natural attraction to the cost-saving involved in the lawyer’s proposal only fortifies our concern. A lawyer rendering free legal services, whether pro bono publico or as an appendage to non-legal services the lawyer is also providing, owes the client a duty of rendering independent professional judgment. That duty does not allow the lawyer to represent the client when a reasonable lawyer would find a significant risk that the lawyer’s professional judgment would be adversely affected by the lawyer’s personal financial interests. The more likely a client is to want or need legal services free of charge, the more important is the protection of assuring the exercise of independent professional judgment unburdened by conflicting personal interests. Advising the client that the client could hire another lawyer – the functional equivalent of an effort at consent that we have found wanting in these circumstances – does not eliminate the problem animating our opinions. CONCLUSION 5. A lawyer may not offer to provide free legal services in a real estate transaction in which the lawyer is acting and being paid as the broker, even if the lawyer/broker advises that the client has the option to retain separate counsel. © 2013 David Paul Horowitz, All Rights Reserved

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Internet Posting Of Law Instruction Videos Directed At Laypersons Committee on Professional Ethics Opinion 918 (4/13/12) Topic:

Solicitation; advertising; public education for laypersons.

Digest: A lawyer may ethically produce and post an internet video designed to educate lay individuals about a legal subject, and may distribute flyers to members of the public inviting them to view the video. However, the lawyer must adhere to advertising and solicitation requirements under the Rules if the video or the flyers encourage participants to retain the lawyer. Rules:

1.0(a), 7.1, 7.3

FACTS 1. The inquirer is a private practitioner who wishes to produce and post on the internet a video designed to educate lay individuals about what to do if they are sued in a collection matter. The video would be general in nature and not specific to any case. The inquirer plans to include her name and firm contact information at the end of the video, but the video will not urge viewers to contact her. Additionally, the inquirer would like to distribute flyers to members of the public, inviting them to view the video. QUESTION 2. May a lawyer ethically distribute flyers to members of the public inviting them to view the lawyer’s internet video designed to educate lay individuals about a legal subject? OPINION 3. This Committee has explained that, under both the current Rules of Professional Conduct and the prior Code of Professional Responsibility,[1] lawyers may participate in legal seminars designed for nonlawyers. See N.Y. State 830 (2009) (opining under current Rules that a lawyer may contact a lay organization to inform it of the lawyer’s availability as a public speaker on legal topics); N.Y. State 508 (1979) (opining under prior Code that law firm may organize a legal seminar designed for non-lawyers). Indeed, participation in such programs is not only permitted but encouraged: “The legal professional should help the public to recognize legal problems because such problems may not be self-revealing and might not be timely noticed. Therefore, lawyers should encourage and participate in educational and public-relations programs concerning the legal system, with particular reference to legal problems that frequently arise.” Rule 7.1, Cmt. [9]. This Committee has also concluded © 2013 David Paul Horowitz, All Rights Reserved

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that lawyers may promote these educational opportunities by mail. N.Y. State 508. 4. Advertisements and solicitations are subject to certain restrictions in the Rules. An “advertisement” is defined by Rule 1.0(a) as follows: “Advertisement’ means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.” 5. The comments address application of the primary-purpose test to educational programs: “A lawyer’s participation in an educational program is ordinarily not considered to be advertising because its primary purpose is to educate and inform rather than to attract clients. Such a program might be considered advertising if, in addition to its educational component, participants or recipients are expressly encouraged to hire the lawyer or law firm.” Rule 7.1, Cmt. [9]. Accordingly, if a program goes beyond education to discuss the lawyer’s skills or reputation, or give other reasons to hire that lawyer, then the lawyer may need to comply with the rules on advertising. But absent the inclusion of some such hiring pitch, a legal seminar will generally not be considered advertising as long as it is a bona fide educational program. 6. Rule 7.3(a)(1) prohibits a lawyer from engaging in solicitation by certain specified means including “by in-person or telephone contact, or by realtime or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or existing client.” Under the definition in Rule 7.3(b), some but not all advertisements constitute solicitations: “For purposes of this Rule, ‘solicitation’ means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.” 7. Applying the above opinions and Rules, as elucidated by the comments, to the present inquiry, we conclude that the inquirer’s proposed course of action does not violate the Rules. The inquirer proposes a legal education program governed by the general principle that such programs are not only permitted but encouraged. The format of the presentation – a video published on the internet – does not change the analysis. See Rule 7.1, Cmt. [7] (recognizing dissemination of non-advertising legal information by another form of internet content – the blog); see also ABA 10-457 (noting that lawyer websites “can assist © 2013 David Paul Horowitz, All Rights Reserved

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the public in understanding the law and in identifying when and how to obtain legal services”) (footnote omitted). 8. The proposed video is a form of legal education for lay individuals that would not usually be categorized as advertising. The primary purpose of such communications is deemed to be one of educating the public rather than attracting clients. See Rule 7.1 Cmt. [9]. The inquirer’s planned inclusion of her firm contact information at the end of the video is a reasonable and appropriate way of identifying the source of the educational program, and it does not, in and of itself, transform the video into an advertisement. Cf. Rule 7.1 Cmt. [7] (explaining that items such as legal pads containing law firm name and contact information do not constitute advertisements if their primary purpose is “general awareness and branding” rather than retention of law firm for a particular matter). 9. As long as the video does not go beyond a bona fide educational presentation, an inquiry into the existence of additional motivations for preparing that presentation is not required. But if the video contains statements or suggestions that the viewers should retain the preparer of the video to represent them, then it may appear that the primary purpose of the video is one of attracting clients. In that case, the video will be subject to Rule 7.1 and the other provisions in the Rules that govern advertising. 10. A similar analysis applies to the flyers (and to other forms of publicity such as mass mailings or emails). If the flyers serve merely to publicize a video which itself does not constitute advertising, then they too would be deemed to have a primarily educational purpose. If the flyers go beyond that to include reasons to hire the inquiring lawyer, then their primary purpose may be deemed one of attracting clients, in which case they would be subject to the advertising rules. If the video and the flyers do not constitute advertising, then they would also not implicate the rules governing solicitation. 11. If, on the other hand, the video includes reasons to hire the inquiring lawyer and constitutes advertising (or if the flyers themselves encourage the public to retain the preparer of the video), then use of the flyers would have to comply with the rules governing solicitation. For example, the flyers generally could not be distributed in person to members of the public. See Rule 7.3(a)(1).[2] 12. Additionally, “all communications by lawyers, whether subject to the special rules governing lawyer advertising or not, are governed by the general rule that lawyers may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or knowingly make a material false statement of fact or law.” Rule 7.1, Cmt [6]. CONCLUSION 13.

A lawyer, having produced and posted an internet video designed to

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educate lay individuals about a legal subject, may ethically distribute flyers to members of the public inviting them to view that video. However, the lawyer may be subject to the advertising and solicitation requirements under the Rules if the video or the flyers include statements or suggestions that the viewers should hire the creator of the video. [1] The Code was substantially revised in 1978 in light of Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which held that categorical prohibitions against attorney advertising violate the First Amendment. [2] As the Committee lacks jurisdiction to determine matters of law, we do not opine on whether the inquirer’s planned communications are permitted under the anti-solicitation provisions of Judiciary Law §479. Law Firm May Not Practice Under Firm Name Consisting Only Of Layer’s Initials Committee on Professional Ethics Opinion 920 (4/26/12) Topic: Law Firm Name Digest: A lawyer may not practice under a law firm name that consists only of the lawyer’s initials. Rules: 7.5(b) FACTS 1. The inquirer is the only lawyer and only employee of a new law firm. Since the lawyer believes that his last name is long [John DoesmithRoesmith], he wishes to call the law firm by his initials [JDR Law]. QUESTION 2. Can a lawyer ethically practice under a law firm name that consists only of the lawyer’s initials? OPINION 3. Rule 7.5(b) of the New York Rules of Professional Conduct provides that a “lawyer in private practice shall not practice under a trade name. . .” This rule serves to protect the public from being deceived as to the identity, responsibility or status of those who use the firm name. See N.Y. State 732 (2000) (applying trade name prohibition in former Code of Professional Responsibility). 4.

In N.Y. State 740 (2001) the Committee opined that “[u]sing a name

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that is not the legal name of one or more partners or former partners in the law firm constitutes the use of a trade name” within the meaning of the prohibition in the Code of Professional Responsibility. As the Committee noted in N.Y. State 869 (2011): “The prohibition against trade names is broad, permitting use of little beyond the names of lawyers presently or previously associated with the firm. As an indication of this breadth, other parts of Rule 7.5(b) create exceptions allowing a firm name to include the names of deceased or retired partners or requiring firms to add terms such as ‘PC,’ ‘LLC,’ or ‘LLP’ only in specified circumstances, suggesting that absent those circumstances, such names or terms might create impermissible trade names.” In N.Y. State 861 (2011) the Committee opined that the New York office of an out-of-state firm could not use the firm name XYZ Firm where X, Y, and Z were the first letters of the firm’s practice areas even if the firm name was ethical in the other state. 5. Because the lawyer’s initials do not constitute the lawyer’s legal name, they would constitute a trade name, and therefore the lawyer is prohibited from practicing under that name. Accord Arizona Opinion 91-09 (1991). 6. We note, however, that language or a name that is impermissible as a trade name may be permissible as a firm “motto.” See In re von Wiegen, 63 N.Y.2d 163, 176-77 (1984) (finding that “The Country Lawyer” used underneath the firm name was a permissible motto rather than an impermissible trade name); N.Y. State 636 (1992) (permitting the name “The Will Store” as a motto in conjunction with the name or names of one or more lawyer principals but not standing alone). CONCLUSION 7. A lawyer may not practice under a law firm name that consists only of the lawyer’s initials. Solo Practitioner’s Use Of “& Associates” In Firm Name New York State Bar Association Committee on Professional Ethics Opinion 931 (9/7/12) Topic:

Law firm names

Digest: Law firm of solo practitioner cannot include “and Associates” based on employment of paralegal © 2013 David Paul Horowitz, All Rights Reserved

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Rules:

7.5(b), 7.5(c), 8.4(c)

FACTS [1] A solo practitioner employs a paralegal. He would like to name his firm “Smith [assumed name] and Associates” because he feels it would give a more positive impression of his firm’s capabilities, but seeks assurance that such name complies with professional ethics. QUESTION [2] Would the law firm name “Smith and Associates” comply with the Rules of Professional Conduct where “Smith” is a solo practitioner, and Smith’s law firm also employs a paralegal? OPINION [3] Rule 7.5(b) provides that “a lawyer in private practice shall not practice under a trade name” or “a name that is misleading as to the identity of the lawyer or lawyers practicing under such name . . .” [4] Rule 7.5(b) also provides that “A lawyer or law firm may not include the name of a nonlawyer in its firm name.” [5] Rule 7.5 (c) provides that “Lawyers shall not hold themselves out as having a partnership with one or more other lawyers unless they are in fact partners.” [6] Comment 1 to Rule 7.5 states that “to avoid the possibility of misleading persons with whom a lawyer deals, a lawyer should be scrupulous in the representation of professional status.” [7] Rule 8.4(c) provides that “A lawyer or law firm shall not . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” [8] The inquirer asks whether he ethically can use the name “Smith and Associates” as the name of his law firm name where he does not have any partners and employs no other lawyers, and the “and Associates” aspect of the proposed name is based on the presence of a paralegal employed by the firm. Thus he asks whether the term “Associates” properly can refer to a paralegal. [9] N.Y. State 869 (2011), which dealt in part with whether a solo practitioner could practice under a name containing the word “Firm,” notes that law firm names are subject to more stringent requirements than general lawyer advertising, and that a law firm may not practice under a trade name or any other name that is misleading. The opinion explains that this requirement “serves to protect the public from being deceived as to the identity, responsibility or status of those who use the firm name.” © 2013 David Paul Horowitz, All Rights Reserved

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[10] Use of the words “and Associates” does not comply with Rule 7.5(b) where the firm only has one lawyer. In that context, the term “and Associates” could only refer to a paralegal or other nonlawyer, since Smith is the only lawyer and Smith’s firm employs a paralegal. The firm name “Smith and Associates” would give the false impression to the public, including potential clients, that Smith is practicing with other lawyer colleagues. This is particularly true where “associate” has a long-established meaning in the context of lawyers in private practice, as a lawyer admitted to practice and employed by the law firm, but is not a partner. [11] On the present facts, the term “and Associates” is misleading, and violates Rule 8.4(c). Based on its literal meaning, it can deceive the public because it suggests that the firm includes at least three lawyers: Smith and two others. [12] N.Y. State 732 (2000) authorizes the use of the word “group” in a law firm name using the name of a particular lawyer where that lawyer practices with other associates (presumably lawyers). Its reasoning assumes that a name suggesting that the firm’s practice includes other associates is not misleading. By negative inference, using “and associates” in a law firm name where the firm consists of only one lawyer would be misleading. [13] N.Y. State 286 (1973), similarly allows the use of the firm name “and associates” in a situation where “the associates” unquestionably refers to lawyers. [14] Rule 7.5(c) also supports the negative answer to the inquiry because of its blanket prohibition against lawyers creating the impression that they are partners where that is not correct.

CONCLUSION [15] A solo practitioner whose law firm employs no other lawyers, but does employ a paralegal, may not ethically use the name “Smith and Associates” because that would risk misleading the public as to the number of lawyers at the firm. Departing Partner’s Designation As “Special Counsel” To Firm New York State Bar Association Committee on Professional Ethics Opinion 936 (9/21/12) Topic: Designation of departing former name partner, who is taking an inhouse counsel position, as “Special Counsel” on letterhead. © 2013 David Paul Horowitz, All Rights Reserved

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Digest: Whether a law firm may designate a departing name partner as “Special Counsel” after removing his name from the firm name depends on the level of his continuing involvement with the firm and its clients. Rules: 1.10(a) & (e), 7.1(a), 7.5(a) FACTS 1. One of the founding name members of the inquiring lawyer’s firm recently left to take a position as in-house counsel to a regional hospital center. The firm has changed its name by eliminating the name of the departing attorney. The firm would, however, like to list the departing attorney’s name on the firm’s letterhead. The inquirer states that the departing attorney’s relationship to the firm remains “sufficiently robust and close to justify including him on the letterhead with an appropriate footnote.” 2. Specifically, the inquirer states that the departing attorney will continue to do meaningful, substantive work through the firm, but only for certain firm clients with whom he had developed a close relationship during his tenure as a member of the firm, and only at their request for his involvement. The departing attorney will not provide legal services through the firm in any other cases. Thus, he will not provide legal services through the firm to clients with whom he did not develop a close relationship, and will not provide legal services to a firm client with whom he did develop a close relationship unless that client has requested his involvement. 3. When the departing attorney provides legal services through the firm, he will consult directly with the client and bill for his services through the firm. The firm will retain 10% of the amount billed for the departing attorney’s time, and the remainder will be paid to the departing attorney. The departing attorney (1) will not have access to firm files for any clients other than those with whom he had a prior close relationship and who request his further involvement, (2) will not have an office at the firm, and (3) will not participate in firm management decisions. 4. The inquiry claims that an “Of Counsel” relationship “is a close, regular, personal relationship implying broader access to general firm files, general availability of the attorney to firm clients, and more involvement in dayto-day affairs of the firm than will be present here.” Thus the firm will not designate the departing partner as being “Of Counsel,” but instead proposes to designate him as “Special Counsel” with a further explanation. QUESTION 5. May the inquirer’s firm designate the departing partner as “Special Counsel” on its letterhead and include one of the following two explanations in a footnote: © 2013 David Paul Horowitz, All Rights Reserved

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Alternative 1: [John Doe], Special Counsel (with a footnote stating, “Mr. [Doe] consults through the firm with certain clients with whom he worked closely while a member of the firm.”) Alternative 2: [John Doe], Special Counsel (with a footnote stating, “Mr. [Doe] consults through the firm with certain clients with whom he worked closely while a member of the firm. He is currently General Counsel for [Name of institution] Hospital Health Center.”) OPINION 6. The New York Rules of Professional Conduct (Rules) do not explicitly address use of the term “Special Counsel,” but do address use of the term “Of Counsel.” Rule 7.5(a) provides in pertinent part: “A lawyer or law firm may use … letterheads … provided the same do not violate any statute or court rule and are in accordance with Rule 7.1, including the following: …. “(4) …. A lawyer or law firm may be designated ‘Of Counsel’ on a letterhead if there is a continuing relationship with a lawyer or law firm, other than as a partner or associate.” 7. While Rule 7.5(a)(4) on its face broadly includes any “continuing relationship,” this term has been interpreted to require a certain threshold level of involvement. “An of counsel relationship is one in which the of counsel lawyer is available to the firm for consultation and advice on a regular and continuing basis.” N.Y. State 853 (2011) (citation and internal quotes omitted); N.Y. State 793 (2006); N.Y. City 1995-8 (noting that term “continuing relationship” has been characterized for purposes of this provision as a “close, regular, personal relationship” other than that of partner or associate). 8. Several variations of the term “Of Counsel,” including “Special Counsel,” have come into use by law firms.[1] The meanings of these various terms are similar and for practical purposes may be indistinguishable. One ethics committee has opined that while there may be “connotative differences evoked by these variants of the title ‘counsel,’ they all share the central, and defining, characteristic of the relationship that is denoted by the term ‘of counsel,’” which is “a close, regular, personal relationship” which is neither that of a partner nor that of an associate. ABA 90-357. One treatise indicates that “counsel” and “of counsel” are terms that “should be considered synonymous,” and ‘special counsel’ may also mean about the same thing, though sometimes it refers to a lawyer who is associated with the firm only for a particular type of matter.” Simon’s New York Rules of Professional Conduct Annotated 1205 (2012 ed.). 9.

“Of counsel” and other designations of professional status must not be

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used in misleading ways. Rule 7.5(a) explicitly provides that use of such designations is subject to Rule 7.1. A provision in the latter rule prohibits a lawyer or law firm from disseminating advertising that contains statements or claims that are false, deceptive or misleading. Rule 7.1(a)(1). 10. Rule 7.1 would apply to this inquiry only when letterhead is used in a communication that constitutes an “advertisement” as defined by Rule 1.0(a). But there are also more general rules governing use of misleading statements.[2] Although Rule 7.5(a) is written in the permissive terms of a safe harbor, we do not believe it serves to allow professional designations that would otherwise violate these more general rules just because the designations are not used in advertising. Ethics committees have set forth criteria for use of particular designations such as “of counsel” so as to avoid the risk of misleading the public.[3] There is no apparent reason to limit that purpose and those criteria to the context of advertising. See Rule 7.5, Cmt. [1] (“In order to avoid the possibility of misleading persons with whom a lawyer deals, a lawyer should be scrupulous in the representation of professional status”). 11. The inquiry before us posits that the departing lawyer’s ongoing new relationship to the firm “is sufficiently robust and close” to justify including him on the letterhead as a “Special Counsel,” but not so extensive as to allow his designation as “Of Counsel.” More particularly, the inquiry points to three factors claimed to be essential to an Of Counsel relationship. The inquiry argues that this terminology implies “[1] broader access to general firm files, [2] general availability of the attorney to firm clients, and [3] more involvement in day-to-day affairs of the firm than will be present here.” We do not adopt this analysis, as it does not completely follow the established principles set forth above.[4] 12. What is essential is that the Of Counsel lawyer be available to the firm for consultation and advice on a regular and continuing basis. This standard is necessarily a matter of degree. See N.Y. State 853 ¶¶ 8-9 (2011) (opining that lawyer who “minimizes” his participation in a firm would not qualify as Of Counsel if he works “full time” as in-house lawyer at a corporation). As applied to the current inquiry, the standard will turn in part on how many clients use the services of the departing lawyer, and to what extent. 13. If the departing lawyer is expected to, and ultimately does, represent a number of former clients in multiple matters on an ongoing basis, that might well justify designating him, on letterhead and otherwise, as Of Counsel (or if the firm wishes, Special Counsel, with or without an explanatory footnote). On the other hand, if the departing lawyer is expected to, and ultimately does, represent only a few former clients in a small number of matters or in very limited ways, then designation as Special Counsel could well be impermissibly misleading. See N.Y. State 853 (2011); N.Y. State 262 (1972) (if relationship only existed for one particular case, “of counsel” designation on letterhead would be misleading “even © 2013 David Paul Horowitz, All Rights Reserved

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though the case might be of great importance and over an extended period of time”). To give an extreme example, it would be misleading for the departing lawyer to maintain a “counsel” designation if, during the first year of the arrangement, no clients at all used his services and his relationship with the firm were purely theoretical.[5] 14. Accordingly, the term “Special Counsel” is permissible only if the departing lawyer’s actual practice includes the regular and continuing level of consultation and advice for the firm and its clients that is necessary to justify a “counsel” designation. This conclusion does not depend on compensation arrangements, see ABA 90-357, or on whether the firm explains the departing lawyer’s relationship to the firm in a footnote. If the departing lawyer meets “counsel” standards, then the firm may use the “Special Counsel” designation and may explain his relationship in an accurate footnote if it wishes, but if he does not meet those standards, an explanatory footnote will not make such a designation permissible. 15. Finally, although the inquiry does not raise the question of imputed conflicts, we believe the issue merits discussion. When a lawyer would be prohibited from representing a client by virtue of certain kinds of conflicts, the prohibition also applies to other lawyers who are “associated in a firm” with the lawyer subject to the conflict.[6] The term “associated” is not defined in the Rules, and it does not apply to all lawyers who are in any way connected or related to the firm. N.Y. State 853 (2011). However, a lawyer with close enough connections to be Of Counsel to a firm is “associated” with that firm for purposes of the imputation rule. See N.Y. State 853 (2011); N.Y. State 793 (2006); N.Y. State 773 (1993); ABA 90-357; N.Y. City 1995-8; Restatement (Third), The Law Governing Lawyers § 123 cmt. c(ii). 16. Moreover, a lawyer who is held out to the public with the term “counsel” or one of its variants – whatever the level of the lawyer’s actual involvement – is “associated” with the firm for purposes of the imputation rule. See N.Y. State 793 (2006) (recognizing imputation when lawyer holds self out as having Of Counsel relationship and thus “conveys to the public that the lawyer has a continuing relationship with a firm that is close and regular”); cf. N.Y. State 807 (2007) (“A law firm may not denominate a lawyer as an associate and then take the position that the lawyer is not an associate for the purpose of imputation of conflicts of interest”). Because variants of the “counsel” formulation are essentially synonymous for ethical purposes, calling the attorney “Special Counsel” as opposed to “Of Counsel” does not change the effect of the designation in imputing conflicts. 17. When two law firms are associated with the same lawyer, they are considered the same firm for conflicts purposes. The legal department of a corporation is considered a law firm, see Rule 1.0(h), and is therefore subject to this rule like any other firm. Accordingly, “the conflicts of the Firm and the legal department will generally be shared and must become part of both of their © 2013 David Paul Horowitz, All Rights Reserved

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conflict-checking systems under Rule 1.10(e).” N.Y. State 853 (2011). 18. In some circumstances, conflicts that would personally disqualify an “of counsel” lawyer from undertaking or continuing a particular representation would not necessarily result in disqualification of the entire law firm from litigation. See Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127 (2d Cir. 2005). In that opinion, after noting ethics opinions suggesting a per se rule imputing conflicts between law firms and their Of Counsel attorneys, the Second Circuit rejected such a per se rule for disqualification purposes. For those purposes it adopted a more flexible standard that had been applied in a different context by N.Y. State 715 (imputation of conflicts for contract lawyers “depends on the facts and circumstances of the employment”). This approach to disqualification has been followed in other cases as well.[7] 19. Judicial reluctance to disqualify an entire firm based on imputation of an Of Counsel lawyer’s conflict of interest, however, is not inconsistent with our view that such a lawyer’s conflicts are always imputed to an entire firm under Rule 1.10(a). Courts considering disqualification motions may have reason to consider whether a conflict violates the Rules, but they may also have reason to consider other factors such as delay, public confidence, increased expense, fairness to the parties, entitlement to choose counsel and the prospect of abusive disqualification motions. Given the availability of procedures for professional discipline, courts have found no need to deal with all ethical violations “in the very litigation in which they surface.” Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). Under this approach, while decisions on disqualification motions may benefit from “general guidance” offered by state disciplinary rules, “not every violation of a disciplinary rule will necessarily lead to disqualification” unless it “tends to taint the underlying trial.” Hempstead Video, 590 F.2d at 132 (quoting Nyquist). Accordingly, under this approach, a conflict that does not warrant disqualification may nonetheless constitute a violation of the Rules. 20. Thus, an Of Counsel (or Special Counsel) relationship between a lawyer with a conflict and a firm may not always justify the firm’s disqualification by imputation in litigation, but as a matter of legal ethics, imputation is required when the lawyer’s conflict is one of the kinds specified in Rule 1.10(a). As a corollary, pursuant to Rule 1.10(e), a law firm that maintains a “counsel” relationship with a lawyer must check for conflicts with that lawyer and that lawyer’s firm, and vice versa. CONCLUSION 21. If the departing lawyer’s continuing work for the firm rises to the level that the lawyer is available to the firm for consultation and advice on a regular and continuing basis, then the lawyer may be designated as Special Counsel on letterhead. In that case, the lawyer would be “associated” with the © 2013 David Paul Horowitz, All Rights Reserved

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firm for purposes of imputation of conflicts of interest. [1] “[A]lthough ‘of counsel’ appears to be the most frequently used among the various titles employing the term ‘counsel,’ it is by no means the only use of that term to indicate a relationship between a lawyer and a law firm. Other such titles include the single word ‘counsel,’ and the terms ‘special counsel,’ ‘tax [or other specialty] counsel,’ and ‘senior counsel.’” ABA 90-357. [2] See Rule 4.1 (in course of representing a client, lawyer shall not make a false statement of fact to a third person) & Cmt. [1] (a misleading statement or omission can constitute a misrepresentation); Rule 8.4(c) (lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”). [3] Such criteria protect against misleading marketing. “Otherwise, law firms could raise the price of their stock (so to speak) by listing a famous lawyer or retired judge or public official as ‘of counsel’ even though the ‘of counsel’ lawyer had little or nothing to do with the firm.” Simon’s New York Rules of Professional Conduct Annotated 1204 (2012 ed.). [4] The inquirer’s analysis purports to distinguish between terms that are extremely close, if not identical, in meaning. We believe that a relationship close enough to justify a “Special Counsel” designation would generally also justify a designation that the lawyer is “Of Counsel.” Moreover, we doubt that any fixed set of a few factors will answer the question whether a relationship is sufficiently close, regular and personal as to justify any form of “counsel” designation. [5] We understand that the number of matters handled may vary over time, and we are not suggesting that a firm is required to reevaluate a “counsel” designation every week or month. The firm may rely on its long-term expectations, but may not indefinitely maintain a designation based on expectations not borne out in actual practice. [6] Rule 1.10(a) states: “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein.” [7] See Calandriello v. Calandriello, 32 A.D.3d 450, 819 N.Y.S.2d 569 (2d Dep’t 2006) (previous representation of defendant-husband by a matrimonial attorney now serving as “of counsel” to plaintiff-wife’s firm would not justify disqualification of plaintiff wife’s firm where, as “of counsel” to the plaintiffwife’s firm, the defendant-husband’s prior attorney “did not perform any legal work for the firm or its clients, but merely had office space available to him in its New York office”); Ciao-Di Restaurant Corporation v. Paxton 350, LLC, 2008 WL 5582720 (Supreme Court N.Y. Co. 2008) (denying disqualification and adopting Hempstead Video rule).

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Referrals & Notification To Client Of Fees New York State Bar Association Committee on Professional Ethics Opinion 942 (11/2/12) Topic: Referrals of clients; notice to clients as to legal fees Digest: Lawyer may not ethically enter into arrangement with a non-lawyer firm to accept referrals of clients whose legal fees, in an amount not disclosed to the client, would be taken from the fee paid by the client to the non-lawyer firm. Rules: 1.5(a) & (b), 1.8(f), 5.4(a), 5.5(b), 7.2(a), 8.4(b) QUESTION 1. May a lawyer enter into an arrangement in which a non-lawyer firm, whose customers are hedge fund managers, refers some of those customers for legal services, and the non-lawyer firm will pay the lawyer an undisclosed portion of a flat fee that it collects from those customers. FACTS 2. A non-lawyer firm (“NL Firm”) sells logo, website and marketing services to hedge fund managers. Along with these services, NL Firm sells template legal documents such as limited partnership agreements to provide fund managers with a cost effective “do it yourself” option. The customers pay NL Firm a flat fee for these services and templates. NL Firm states in its materials that it is not a law firm and that the customer should consult a lawyer. 3. NL also proposes to offer to its customers, for a higher flat fee, an option that would include, in addition to the above services and templates, a referral to an outside attorney with expertise in hedge funds and securities law. The outside attorney would provide the client with “standard hedge fund legal services.” The attorney would provide an engagement letter to the client. However, the attorney’s fee for legal services would be paid by the NL firm, out of the flat fee it receives from its customer, on the basis of a separate agreement between NL Firm and the lawyer. The engagement letter would not state the amount of the fee to be paid by NL Firm to the lawyer, and it appears that the client would not otherwise be so advised. OPINION 4. As a preliminary matter, the inquiry raises some questions of law. Would NL Firm, by selling templates of legal documents to its customers, be engaged in the unauthorized practice of law? See Judiciary Law §§ 478, 484. Would NL © 2013 David Paul Horowitz, All Rights Reserved

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Firm, by its arrangements with the inquiring attorney, be improperly involved in legal practice? See Judiciary Law § 495(1) (d), (e) & (h) (no corporation shall furnish attorneys, render legal services, nor advertise that either alone or with an admitted attorney, it has an office for the practice of law or the furnishing of counsel). Would NL Firm be engaged in unlawful solicitation of business on behalf of an attorney? See Judiciary Law § 479 (unlawful to solicit legal business, or to solicit a retainer authorizing an attorney to perform or render legal services). All such questions of law are beyond the jurisdiction of this Committee to resolve. 5. We note, however, that the answers to these legal questions may have consequences under the Rules of Professional Conduct (the “Rules”). If the sale of legal templates constitutes unauthorized practice of law, then under Rule 5.5(b), the lawyer would be prohibited from aiding NL Firm in such unauthorized practice. More generally, the lawyer’s involvement with NL Firm could be unethical if the proposed arrangements were to violate any of the Judiciary Law provisions cited above. See Rule 8.4(b) (a lawyer shall not “engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer”). 6. Whatever may be the answers to the above legal questions, the proposed arrangement violates the ethical requirement that a lawyer communicate fee information to a client. Rule 1.5(b) requires, subject to an exception not applicable here, as follows: A lawyer shall communicate to a client … the basis or rate of the fee and expenses for which the client will be responsible. This information shall be communicated to the client before or within a reasonable time after commencement of the representation and shall be in writing where required by statute or court rule. The information must be in writing when the fee to be charged is expected to be $3,000 or more. See 22 N.Y.C.R.R. §§ 1215.1, 1215.2. 7. Under the proposed arrangement, the written engagement letter would be silent as to the legal fee. The lawyer could provide fee information other than in writing if the legal fee were expected to be less than $3,000, but it appears from the inquiry that information about the legal fee will not be provided to the client even orally. The proposed arrangement would thus violate Rule 1.5(b). 8. There are other ethical rules that could also be violated by the proposed arrangement, but the inquiry does not provide enough information to make that determination. One of these is Rule 5.4(a), which provides, subject to exceptions inapplicable here, that a lawyer “shall not share legal fees with a nonlawyer.” NL Firm charges a lower amount to those customers who do not seek legal services, and a higher amount to those who do. The difference between the lower and higher amounts is, in effect, what the customer is paying for the legal services. © 2013 David Paul Horowitz, All Rights Reserved

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The inquiry does not reveal how that enhancement of the customer’s fee relates to the fee paid by NL Firm to the attorney. If the increased amount paid by the customer were more than the amount paid to the lawyer, then NL Firm would be retaining part of what the customer is paying for legal services, which would violate Rule 5.4(a).[1] 9. Also relevant is the rule against payment for referrals. Rule 7.2(a) provides, subject to certain exceptions: “A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client.”[2] It would violate this rule if the inquiring lawyer would be giving something of value to NL Firm in exchange for client referrals. For example, if the lawyer had a standard fee for “standard hedge fund legal services,” and if it were to charge NL Firm less than that standard fee, then the discount would appear to be an impermissible payment for referrals. The inquiry does not include enough information to determine whether the lawyer would be in violation of this rule. 10. Given the NL Firm’s role in providing the fee to the lawyer, another relevant rule is the one governing payment of legal fees by third parties. A third party may pay legal fees, but only if the client gives informed consent, the third party does not interfere with the lawyer’s independent professional judgment or with the client-lawyer relationship, and the client’s confidential information is appropriately protected. Rule 1.8(f). Informed consent can occur only after the lawyer has adequately explained the risks and provided enough information for the client to make an informed decision. Rule 1.0(j). That standard may not be satisfied here, given the apparent limits to the planned disclosure to the client, who will not be told even the amount of the fixed legal fee to be paid by NL Firm. 11. Finally, we note that as always, a lawyer’s fee cannot be excessive. Rule 1.5(a). It appears that NL Firm is to pay a fixed amount for a standard set of legal services. A flat rate fee is not necessarily excessive, but neither is it necessarily reasonable. See Simon’s New York Rules of Professional Conduct Annotated 111 (2012 ed.). Whether or not the fee described in the proposed arrangement would be excessive cannot be determined based upon the facts given in this inquiry. CONCLUSION 12. A lawyer may not ethically enter into an arrangement with a non-lawyer firm to accept referrals of clients whose legal fees, in an amount not disclosed to the client, would be taken from the fee paid by the client to the non-lawyer firm. [1] On the other hand, if the increased amount paid by the customer were less than the amount paid to the lawyer, then NL Firm would be paying part of the legal fee from its own assets. This possibility underlines the importance of considering Rule 1.8(f), which we discuss in paragraph 10. © 2013 David Paul Horowitz, All Rights Reserved

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[2] The exceptions to Rule 7.2(a) are inapplicable here. One of them allows payment of usual and reasonable fees charged by a qualified legal assistance organization, Rule 7.2(a)(2), but NL Firm is not such an organization. More broadly, various restrictions discussed in this opinion may not apply to certain other kinds of organizations specified in the Rules, but again, NL Firm does not fit within any of these categories. See Rule 7.2(b) (allowing lawyer to be recommended and paid, and cooperate with, certain legal aid or public defender offices, a military legal assistance office, certain lawyer referral services, and certain bona fide organizations with legal services plans for their members or beneficiaries). Disclosure Of Client Wrongdoing New York State Bar Association Committee on Professional Ethics Opinion 945 (11/07/2012) Topic:

Disclosure of client wrongdoing.

Digest: A lawyer may not disclose that the client has been reading the opposing party’s client-lawyer e-mails, although not communicating the e-mails or their contents to the lawyer, unless (1) the lawyer knows that the client is committing a crime or fraud and no other remedial measures will prevent harm to the opposing party, or (2) governing judicial decisions or other law require disclosure. Rules:

1.6, 3.3, 4.4(b), 8.4(d).

QUESTION 1. A lawyer represents a client in a matrimonial litigation. The client has disclosed that the client has access to, and has been reading, the spouse’s e-mails, including e-mails with counsel. Although the client has not provided the spouse’s lawyer-client e-mails or disclosed their contents to the lawyer, the client may be using knowledge of their contents in making decisions about the litigation. Must the lawyer disclose the client’s conduct? OPINION 2. A lawyer’s knowledge that the client is reading the spouse’s client-lawyer e-mails is “confidential information” subject to the lawyer’s confidentiality duty under Rule 1.6(a). The lawyer should admonish the client to refrain from this conduct. However, absent an exception to the general duty to preserve a client’s confidential information, the lawyer may not disclose the client’s conduct to the court or opposing counsel. 3.

One arguable source of a disclosure obligation in this situation is Rule

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4.4(b), which requires a lawyer who “receives” an “inadvertently sent” document to notify the sender. By its terms, this rule is not applicable, however, since the lawyer has not “received” the e-mails from the opposing party or counsel or from anyone else. Further, even if the lawyer had received the e-mails from the lawyer’s client, it is uncertain whether the rule would apply. At least in the view of the ABA ethics committee, the rule would be inapplicable because the e-mails, although wrongly obtained by the lawyer’s client, have not been “inadvertently sent.” See ABA Formal Op. 11-460 (2011); ABA Formal Op. 06-440 (2006). The Comment accompanying Rule 4.4(b) is consistent with the ABA’s interpretation. See Rule 4.4(b), Cmt. [2] (“this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongly obtained by the sending person”). 4. It might also be argued that notification is required by Rule 8.4(d), which forbids a lawyer from engaging “in conduct that is prejudicial to the administration of justice.” N.Y. City 1989-1 supports this argument. The opinion considered the obligations of a lawyer whose client intercepted written communications between her spouse and her spouse’s counsel and provided the communications to her lawyer. The opinion concluded that even if the lawyer did not intend to use the communications, the lawyer “must disclose (or call upon his client to disclose) his possession of the documents and return the documents or provide copies.” The opinion reasoned that the receipt of the information, which is likely to be privileged and in any event was obtained outside normal discovery procedures, gives the lawyer and his client “an advantage that, however slight, they are not entitled to have,” and that retaining that advantage without the opposing party’s awareness would be prejudicial to the administration of justice. 5. Opinion 1989-1 must be distinguished from the inquiry we address here, however, because the inquirer has not received the e-mails and is not in a position to use them. Although the client may have engaged in conduct prejudicial to the administration of justice, the lawyer has not done so. Additionally, this Committee has doubts whether Opinion 1989-1, if correct at the time it was issued, remains correct. Compare Arizona Op. 01-04 (2001) (where client wrongly procures former employer’s privileged or confidential documents from a current employee, the ethics rules “prohibit the lawyer from notifying the exemployer or its counsel of the documents’ receipt without first obtaining client consent”). The New York judiciary’s adoption of Rule 4.4(b), effective 2009, appears to reflect a judgment that the handling of improperly obtained documents should be left to case law and other law. That is the import of the accompanying Comment, quoted above. 6. One must also consider whether the inquirer has a disclosure obligation under Rules 3.3(b) & (c). Rule 3.3(b) provides that “[a] lawyer who represents a client before a tribunal and who knows that a person . . . has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Rule 3.3(c) provides that this duty applies even if compliance requires disclosure of © 2013 David Paul Horowitz, All Rights Reserved

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confidential information. The purpose of Rule 3.3(b) is “to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process.” Rule 3.3, Cmt. [12]. 7. Rule 3.3(b) is inapplicable unless the lawyer knows that the client’s conduct in question is “criminal or fraudulent.” Because this Committee interprets only the Rules of Professional Conduct and not other law, we do not express an opinion whether the client’s conduct in reading the spouse’s lawyerclient e-mail communications rises to the level of a crime or fraud. If it does, the lawyer’s duty is to “take reasonable remedial measures,” which do not necessarily include disclosure of client confidences. Since the lawyer has not gained access to the e-mails or their contents, it may be a sufficient remedial measure for the lawyer to persuade the client to cease the misconduct. If that is enough to avert harm to the client’s spouse, then the rule would not require disclosure. However, disclosure must be made to the court or opposing counsel if the client’s conduct is “criminal or fraudulent” and no other measures provide an adequate remedy. 8. Finally, Rule 1.6(b)(6) permits a lawyer to reveal confidential information “to the extent the lawyer reasonably believes necessary . . . when permitted or required under these Rules or to comply with other law or court order.” Under this provision, when the law governing potential disclosure is unclear, a lawyer need not risk violating a legal or ethical obligation, but may disclose client confidences to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law, even if the legal obligation is not free from doubt. See ABA 11-460 (2011). 9. Judicial decisions, without reference to the disciplinary rules, have found that lawyers have a notification obligation in some circumstances where clients wrongly procure the opposing party’s documents. See, e.g., Parnes v. Parnes, 80 A.D.3d 948, 915 N.Y.S.2d 345 (3d Dep’t 2011) (where the wife in a divorce action wrongly downloaded her husband’s e-mails and provided them to her attorney, the intermediate appellate court observed: “we certainly do not condone the failure of plaintiff’s counsel to promptly notify defendant’s counsel that she had obtained the e-mails or her tactic of surprising defendant at his deposition by questioning him regarding those privileged documents”); Lipin v. Bender, 193 A.D.2d 424, 597 N.Y.S.2d 340 (1993), aff’d, 664 N.E.2d 1300 (N.Y. 1994) (where the plaintiff in an employment action removed and copied the opposing lawyer’s internal memos while the lawyers were out of the room and provided the copies to her own lawyer, the plaintiff’s lawyer should either have returned the documents or sought direction from the court rather than attempting to exploit the documents in settlement discussions); Forward v. Foschi, 27 Misc. 3d 1224A, 911 N.Y.S.2d 392, 2010 N.Y. Misc. LEXIS 1066 (N.Y. Supreme Court, May 18, 2010) (“when he realized . . . his client had turned over to him communications between [the opposing party] and her attorneys, [the lawyer] should have disclosed his receipt of such communications and attempted to mitigate the circumstances, especially, if, as he asserts, the communications were of little value”). These decisions may be intended to impose obligations, pursuant to the © 2013 David Paul Horowitz, All Rights Reserved

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courts’ supervisory authority, that are independent of the ethics rules and that go beyond the disclosure obligations of Rule 3.3(b) and other rules. The extent of any court-established disclosure obligations and whether they apply to the inquirer’s situation is a question of law that this Committee lacks jurisdiction to answer. If the inquirer reasonably believes that disclosure is necessary to comply with applicable judicial decisions, such disclosure is permitted by Rule 1.6(b)(6). CONCLUSION 10. A lawyer may not disclose that the client has been reading the opposing party’s client-lawyer e-mails, although not communicating the e-mails or their contents to the lawyer, unless (1) the lawyer knows that the client is committing a crime or fraud and no remedial measures other than disclosure will prevent harm to the opposing party, or (2) governing judicial decisions or other law require disclosure. Communication With Unrepresented Persons New York State Bar Association Committee on Professional Ethics Opinion 956 (1/14/13) Topic: Communication with unrepresented party; taking deposition of unrepresented party; deceptive/and/or fraudulent conduct at client’s request. Digest: It would be misleading for a lawyer to depose an unrepresented party to a lawsuit, who is not aware of the lawsuit without disclosing that the lawyer's client's interests are adverse to the unrepresented party. The lawyer cannot provide advice to the unrepresented party but is required to tell the party to obtain counsel. Rules:

1.0(i), 1.2(d), 1.4 (a), 1.16(c), 4.2, 4.3, 8.4(a)(c)(d)

FACTS 1. The inquirer is an attorney who commenced a lawsuit on behalf of his client. The lawsuit names two parties as defendants, Party A and Party B. Party A has been served with the lawsuit; Party B has not been served, nor is Party B aware of the pending lawsuit. 2. The client has asked the inquirer to depose Party B before serving the complaint. In order to facilitate this, the client will bring Party B to the inquirer’s office. The inquirer believes that since Party B is unaware of the lawsuit Party B may testify to Party B's disadvantage. 3. The inquirer asks whether it is ethically permissible to take Party B’s deposition when in fact Party B is not aware that Party B is a named defendant to the lawsuit. © 2013 David Paul Horowitz, All Rights Reserved

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4. The inquirer also asks whether taking the deposition under the circumstances suggested by his client would render Party B’s testimony inadmissible. QUESTION 5. Do the New York Rules of Professional Conduct (the “Rules”) prohibit an attorney from deposing, at his client’s request, a party who is unaware that the party is a named defendant in a pending lawsuit? OPINION 6. The question of whether the lawyer is permitted to conduct a deposition under the above described circumstances requires a two-step analysis: 1) whether the communications between the inquirer and the party to be deposed could lead to a misunderstanding and 2) whether the interests of Party B, the prospective deponent, are adverse to the client. As part of that analysis, the Rules’ prohibition against a lawyer’s engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation” must also be considered. 7. This Committee does not opine on questions of law, and therefore will not opine on whether any deposition testimony taken of Party B would be admissible in court. 8. Apparently, in order to gain some sort of advantage the client has asked the inquirer to depose Party B without disclosing to Party B the existence of a pending lawsuit against Party B. Clearly the conduct requested by the inquirer’s client could lead to a misunderstanding on Party B’s part about the purpose of the deposition. 9. The Rules contemplate the possibility that lawyers may have communications with persons with interests adverse to their clients, both those represented by counsel as well as unrepresented persons. 10. Rule 4.3 sets forth the rule for lawyers communicating with unrepresented persons and provides as follows: “In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person other than the advice to secure counsel if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.” 11.

Comment [1] of Rule 4.3 further states:

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“An unrepresented person might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer’s client, and where necessary, explain that the client has interests opposed to those of the unrepresented person.” 12. In this instance, in accordance with Rule 4.3, the lawyer must explain the lawyer's role to the unrepresented person. Specifically, that the lawyer represents the client and that Party B’s interests are adverse to the client’s interests. Further, because the inquirer also knows that Party B’s interests are adverse to the client the lawyer should advise the unrepresented Party B to obtain independent counsel. 13. This conclusion is consistent with prior ethics opinions concerning what information a lawyer may communicate to an unrepresented party. In some cases, in order to be sure that the unrepresented party understands the need for counsel, lawyers have been directed "to give non-controvertible information about the law to enable the other party to understand the need for independent counsel.” N.Y. State 728 (2000). See also N.Y. State 477 (1977), N.Y. City Bar Op. 2009-02 (2009). 14. In the above analysis we have assumed that Party B is unrepresented. If in fact, Party B is represented by counsel, and the inquirer is aware of the representation, then Rule 4.2 would dictate the inquirer’s communications with her. 15.

Rule 4.2(a) states:

“In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.” 16. As such, if the inquirer knows that Party B is represented by a lawyer, then the inquirer is prohibited from communicating with Party B, including taking her deposition, without her lawyer’s consent. 17. The inquiry, however, adds another dimension to the attorney’s obligation because the inquirer’s client seems to be asking the inquirer to depose Party B under false pretenses and the inquirer must also be mindful to avoid engaging in deceptive or fraudulent conduct. 18. The inquirer has indicated that the client will ask Party B to come to the inquirer lawyer’s office under the false pretense that Party B will be assisting the client when in fact such assistance will be provided at Party B’s expense as the client obtains information to build a case in support of the client and against Party B. 19.

Pursuant to Rule 8.4(c) of the Rules of Professional Conduct, a lawyer is

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prohibited from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation.” Accordingly, the proposed conduct without the abovementioned disclosure would be prohibited by Rule 8.4(c) as it involves deceit and misrepresentation. 20. Further, the inquirer's actions in conducting such a deposition under the suggested pretense would also violate Rule 8.4(a) if the lawyer knowingly aids or assists his client in violating or attempting to violate the Rules. Specifically Rule 8.4(a) provides that a lawyer shall not “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through acts of another.” 21. Rule 1.4(a)(5) states: “A lawyer shall consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by these Rules or other law.” 22. We are not privy to what the client would tell Party B to bring Party B to the inquirer’s office to be deposed or even if the client would tell Party B about the proposed deposition. Whether or not the proposed conduct rises to the level of fraud is a question of fact beyond the scope of this committee; however, we believe it is prudent to alert the inquirer to the definition of fraud in Rule 1.0(i) and the prohibition against assisting a client in conduct the lawyer knows is fraudulent. 23. Rule 1.2 (d) of the New York Rules of Professional Conduct (the “Rules”) states that: A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client. 24. The lawyer must advise his client that the proposed conduct, without the aforementioned disclosure, would be in violation of the Rules. The inquirer should advise the client that the inquirer will have to disclose to Party B, as stated above, the lawyer’s role in the matter and will need to advise Party B to retain counsel. 25. If the client persists in demanding that the lawyer proceed with a proposed course of conduct that is fraudulent, the inquirer must exercise his right to withdraw from representing the client pursuant to Rule 1.16(c)(13), which provides that “a lawyer may withdraw from representing a client when the client insists that the lawyer pursue a course of conduct which is illegal or prohibited under these Rules.” See also Rule 1.16(b)(1) (requiring withdrawal when lawyer knows or reasonably should know that the representation will result in a violation of the Rules or of law).

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CONCLUSION 26. It would be misleading for the inquirer to depose Party B, an unrepresented party, without disclosing that the lawyer is not neutral and that Party B’s interests are adverse to the inquirer’s client. In addition, because Party B’s interests are adverse to the interests of the inquirer’s client, the inquirer would be required to inform Party B of the right to obtain counsel. The Rules also require that the inquirer advise his client that taking the deposition without the above disclosures to Party B would be prohibited by the Rules.

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IX. Miscellaneous Counsel In Court To Obtain Adjournment Held To Have Authority To Enter Into Binding Settlement Caroli v. Allstate Ins. Co., 2012 NY Slip Op 8086, 955 N.Y.S.2d 128 (2d Dep’t 2012) On March 2, 2010, counsel for the plaintiff and counsel for the defendant appeared before the Supreme Court, in the trial scheduling part, for a pretrial conference. Prior to the pretrial conference, counsel for the parties had appeared for a number of pretrial conferences which were adjourned so that the parties could secure consent to a settlement from the Federal Home Loan Mortgage Corporation, commonly referred to as Freddie Mac (hereinafter Freddie Mac ), which had a lien against the subject property and any recovery the plaintiff received from this action, in the amount of approximately $140,000. After an off-the-record conference with the Supreme Court that morning, the case was called by the clerk of the trial scheduling part. On the record, counsel for the defendant advised the court that "it is agreed by and between the attorney representing [the plaintiff] and myself that the matter is fully and finally settled for the sum of $10,000. The reason for that figure is to avoid any further costs for litigation." In the course of placing the settlement on the record and through the court's questioning of counsel, the issue of Freddie Mac's lien and its impediment to the settlement was raised. Counsel for both parties responded to questions by the Supreme Court with respect to the lien. Counsel for the defendant then stated that, "without either a discharge of the lien and/or a consent to settle, [the parties] remain in limbo." The Supreme Court then discharged Freddie Mac's lien, "at least as it affects any proceeds or settlement or any money realized from this litigation." The case was then marked "Settled Before Trial" as of March 2, 2010. On January 28, 2011, the plaintiff moved, in effect, to vacate the stipulation of settlement and restore the action to the trial calendar. In support of the motion, the plaintiff submitted an affirmation from his attorney, who claimed that the attorney who appeared on behalf of the plaintiff at the March 2, 2010, pretrial conference was a per diem attorney who was engaged only to obtain an adjournment of the pretrial conference pending ongoing discussions with Freddie Mac. The plaintiff's counsel contended that the plaintiff did not intend to settle the matter at that conference. Moreover, he asserted that any indication to the Supreme Court that the matter was settled did not amount to an enforceable settlement agreement between the parties in open court, since the requirements of CPLR 2104 were not satisfied. The defendant opposed the motion, challenging the plaintiff's characterization of the authority of the attorney who represented him at the preconference as limited, since there was no attempt by that counsel to adjourn the trial during the on-therecord stipulation of settlement. The defendant stressed that 22 NYCRR 202.26(e) © 2013 David Paul Horowitz, All Rights Reserved

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requires that only counsel with authority to bind a party are permitted to appear at pretrial conferences. It also contended that the plaintiff failed to establish that the settlement agreement should be voided on the basis of fraud, collusion, mistake, or accident. In the order appealed from, the Supreme Court granted the plaintiff's motion, in effect, to vacate the stipulation of settlement and restore the action to the trial calendar on the basis that it did not appear that an agreement was reached between the parties, because neither the plaintiff nor a representative of Freddie Mac was present in court, and the per diem attorney "barely participated in the settlement." The defendant appeals. Oral stipulations entered into in open court by counsel on behalf of their clients are binding (citations omitted). "Stipulations of settlement are favored by the courts and not lightly cast aside . . . Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (stipulations omitted). The defendant correctly contends that the parties placed a valid settlement agreement on the record through their counsel in open court and that the plaintiff failed to submit any evidence to establish that the agreement should be set aside on the basis of fraud, collusion, mistake, or accident (stipulations omitted). Contrary to the plaintiff's contention, the material terms of the settlement were addressed on the record (citation omitted). Moreover, an agreement was reached between the parties, even though the defendant's counsel placed the settlement on the record while the plaintiff's counsel initially remained silent until the Supreme Court started questioning counsel about Freddie Mac's lien. "[A] duty to speak generally arises . . . when the settlement is actually placed on the record" (id. at 59). [***3] Thus, the silence of the plaintiff's attorney while the defendant's counsel was advising the Supreme Court that the matter was settled for the sum of $10,000 constituted acceptance. Post-Verdict, Pre-Entry Of Judgment Settlement Bars Contribution Claim Under GOL §15-104 Carlin v. Patel, 99 A.D.3d 1220, 951 N.Y.S.2d 807 (4th Dep’t 2012) Plaintiffs commenced this medical malpractice action (main action), and defendant-third-party plaintiff, Zahid M. Chohan, M.D., asserted cross claims for contribution against defendants-third-party defendants, Rajnikant M. Patel, M.D. and Mohammad Sarwar, M.D., that were converted into a third-party action after the main action was dismissed against Patel and Sarwar. The parties to the third© 2013 David Paul Horowitz, All Rights Reserved

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party action agreed to sever that action from the main action and to conduct the trial therein at a later date. At the conclusion of the trial in the main action, the jury returned a verdict finding Chohan liable to plaintiffs and awarding plaintiffs the sum of $2.4 million in damages. Following the verdict in the main action but before entry of the judgment, Chohan settled with plaintiffs. Thereafter, Patel and Sarwar moved for summary judgment dismissing the third-party action on the ground that Chohan is barred by General Obligations Law ß 15-108 (c) from seeking contribution from them. We conclude that Supreme Court erred in denying the motion. General Obligations Law ß 15-108 (c) provides that "[a] tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person." Thus, as a general rule, a tortfeasor who settles with an injured party may not seek contribution from any other tortfeasor or potential tortfeasor (see ß 15-108 [c]; Gonzales v Armac Indus., 81 NY2d 1, 5, 611 N.E.2d 261, 595 N.Y.S.2d 360). That rule, however, does not apply to post judgment settlements (citations omitted). General Obligations Law ß 15-108 (d) (3) provides, in relevant part, that "[a] release . . . between a plaintiff or claimant and a person who is liable or claimed to be liable in tort shall be deemed a release . . . for the purposes of this section only if . . . such release . . . is provided prior to entry of judgment" (emphasis added). Thus, a tortfeasor who settles with an injured party after the entry of a judgment retains the right to seek contribution from other tortfeasors (citations omitted). Here, it is undisputed that Chohan settled with plaintiffs prior to the entry of the judgment against him, and thus he forfeited his right to seek contribution from Patel and Sarwar according to the plain language of General Obligations Law ß 15-108 (citations omitted). We therefore reverse the order, grant the motion of Patel and Sarwar, and dismiss the third-party action (citation omitted). Failure Of Defendant To Oppose Co-Defendant’s CPLR 3211 Motion Does Not Preclude Non-Moving Party From Asserting Article 16 Limitation Of Liability Hendrickson v. Philbor Motors, Inc., 2012 NY Slip Op 8489, 955 N.Y.S.2d 384 (2d Dep’t 2012) Writing for the court, Justice Dillon framed the issue and holding of the Second Department: We address, for the first time at an appellate level, whether a defendant's failure to oppose a codefendant's motion to dismiss a complaint and cross claims pursuant to CPLR 3211 precludes that party from later asserting that its liability is limited under CPLR article 16. For the reasons set forth below, we hold that, in this instance, it does not. *** © 2013 David Paul Horowitz, All Rights Reserved

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Subject to certain exceptions not applicable here (see CPLR 1602), CPLR 1601(1) limits the liability that can be imposed upon a defendant that is jointly and severally liable for noneconomic loss in instances where that defendant's liability is found to be 50% or less of the total liability assigned to all persons liable (citation omitted). Under such circumstances, the joint and several liability of such a defendant shall not exceed its proportionate share of the total liability for the noneconomic loss (citation omitted). The assessment of a defendant's equitable share, as a percentage of the total liability assigned to "all persons liable" (CPLR 1601[1]), must take account of not only persons who are parties to the action, but also persons who are nonparties over whom jurisdiction could be obtained (citations omitted). The Hendricksons argued before the Supreme Court, and now argue in response to Cooper Tire's appeal, that because Cooper Tire failed to contest the award of "summary judgment" to Ford, Ford received the functional equivalent of a trial that collaterally estops Cooper Tire from attributing a portion of liability to Ford in calculating the apportionment otherwise required by CPLR article 16 (citation omitted). Indeed, in Drooker, the Supreme Court specifically and correctly noted that since summary judgment is the "functional equivalent" of a trial, it follows that the limited liability benefits for defendants under CPLR article 16 are forfeited as to any codefendant who has been awarded summary judgment in its favor (citation omitted). *** We agree with Cooper Tire that if the granting of Ford's cross motion was a result of the failure of the complaints or any other pleading to state a cause of action, then there has been no functional equivalent of a trial here, and Ford may be considered to be among "all persons liable" within the meaning of CPLR article 16. Conversely, we agree with the Hendricksons that if Ford's cross motion were treated by the parties and the Supreme Court as one for summary judgment, then the functional equivalent of a trial has been held, and Ford cannot be assessed liability for the plaintiffs' damages to any degree—not even by the application of CPLR 1602(1). Until now, no New York appellate court has been called upon to draw a distinction between the effect of dispositions under CPLR 3211 and 3212 in the context of CPLR article 16 limitations on liability. The fact that Ford made its CPLR 3211(a)(7) cross motion after interposing its answer in Action No. 1, instead of making a pre-answer motion, is of no moment. All motions under CPLR 3211 are to be made "[a]t any time before service of the responsive pleading" (CPLR 3211[e]), except that CPLR 3211 motions may be made after service of the party's answer in three circumstances: when the motion is based upon subdivision (a)(2) subject matter jurisdiction, (a)(7) failure to state a cause of action, or (a)(10) nonjoinder of a necessary party (citation omitted). Here, since Ford's cross motion sought dismissal of the complaints pursuant to © 2013 David Paul Horowitz, All Rights Reserved

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CPLR 3211(a)(7) for failure to state a cause of action, its post-answer timing does not necessarily or definitionally transform it into a motion for summary judgment. Court of Appeals Holds Choice of Law Provision in Contract Obviates Need for Choice of Law Analysis IRB-Brasil Resseguros, S.A. v. Inepar Invs., S.A., 2012 NY Slip Op 08669 (December 18, 2012) Writing for a unanimous Court, Chief Judge Lippman framed the issue before the Court: “[W]hether a conflict-of-laws analysis must be undertaken when there is an express choice of New York law in the contract pursuant to General Obligations Law § 51401[?]” The Court held “that the need for a conflict-of-laws analysis is obviated by the terms of the parties' agreement.” Brazilian defendants issued bonds paying interest at a fixed rate of 9.9% per annum, and the governing agreement “stated that ‘[t]his Agreement, the Notes, and the Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to conflict of laws principles.’" After one defendant defaulted, summary judgment was awarded to plaintiff against the remaining defendant, and a Special Referee fixed damages and directed that interest be paid at 9.9% per annum on the judgment. The trial court held that the choice of law provision be given mandatory effect pursuant to GOL §5-1401, and the appellate division modified only to the extent of limiting the post-judgment interest to the statutory rate of 9%, After discussing the legislative purpose behind GOL §5-1401 and its interplay with GOL §5-1402, the Court concluded: The plain language of General Obligations Law § 5-1401 dictates that New York substantive law applies when parties include an ordinary New York choice-of-law provision, such as appears in the Guarantee, in their contracts. The goal of General Obligations Law § 5-1401 was to promote and preserve New York's status as a commercial center and to maintain predictability for the parties. To © 2013 David Paul Horowitz, All Rights Reserved

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find here that courts must engage in a conflict-of-law analysis despite the parties' plainly expressed desire to apply New York law would frustrate the Legislature's purpose of encouraging a predictable contractual choice of New York commercial law and, crucially, of eliminating uncertainty regarding the governing law. Typed Name In E-Mail Of Stipulation Satisfies Requirement That Stipulation Be “Subscribed” Forcelli v Gelco Corp., 109 AD3d 244, ___NYS2d___ (2d Dept, July 24, 2013) A stipulation is only enforceable if it satisfies CPLR 2104, which provides that, if the stipulation was not made in open court, it must be in writing and subscribed by the party to be charged. The “subscription” requirement contemplates some form of signature. Traditionally, that requirement was satisfied with an individual’s handwritten signature. Can a name typed at the end of an e-mail satisfy the subscription requirement of CPLR 2104? The Second Department joins the First and Third Departments in finding that it can. The Forcelli court says that when “an email message contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature, such an email message may be deemed a subscribed writing within the meaning of CPLR 2104 so as to constitute an enforceable agreement.” N.B.: Handwritten signatures are increasingly unnecessary in NY civil practice. Typed “signatures” (such as the one at issue in Forcelli) and “e-signatures” (see Martin v Portexit Corp., 98 A.D.3d 63, 948 N.Y.S.2d 21 [1st Dept 2012] [affirmation containing electronic signature complies with CPLR 2106]) are frequently used in litigation, and recognized as the equivalent of handwritten signatures (compare Eill v Morck, 37 Misc. 3d 1211[A], 961 N.Y.S.2d 357 [table] [Sup Ct, Kings County, 2012] [observing that rubber-stamped or machine-generated signatures should be viewed with skepticism]).

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Ressler & Ressler: Specializing in Personal Injury and Complex Tort Litigation

Page 1 of 1

David Paul Horowitz Bruce J. Ressler Ellen R. Werther Larry S. Reich

David Paul Horowitz has over 23 years of experience in complex tort litigation, and had represented injured people and the families of victims of wrongful death throughout New York State in all types of personal injury cases, including medical malpractice, product liability, construction, and mass torts. He received his law degree from Fordham University School of Law in 1988 and, since that time, has focused his practice on product liability, construction, and professional malpractice litigation. Mr. Horowitz is admitted to practice in the state courts of New York and Massachusetts, has been admitted pro hac vice numerous times in New Jersey, and was named to New York Super Lawyers in each of the last five years. He is also an Adjunct Professor of law and teaches New York Practice at Brooklyn Law School and Evidence at St. John's Law School. He is the author of the LexisNexis Answerguide New York Civil Disclosure and the 2011 Supplement to Fisch On New York Evidence; he also pens the New York State Bar Journal's monthly column "Burden of Proof." A member of the OCA CPLR Advisory Committee and New York State Bar Association's CPLR Committee, he presents CLE throughout the State for the New York State Judicial Institute and numerous bar associations, and is a founding Dean of CLE at the New York State Academy of Trial Lawyers.

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