New York Bridge the Gap Session A CPLR Update 2016

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1 EVALUATION FORM In order for us to improve our continuing legal education programs, we need your input. Please complete this evaluation form and place it in the box provided at the registration desk at the end of the session. You may also mail the form to CLE Director, NYCLA, 14 Vesey Street, New York, NY New York Bridge the Gap Session A CPLR Update 2016 January 11, 2016; 5:30 PM 9:00 PM I. Please rate each speaker in this session on a scale of 1-4 (1 = Poor; 2 = Fair; 3 = Good; 4 = Excellent) David Paul Horowitz Presentation Content Written Materials II. Program Rating: 1. What is your overall rating for this course? Excellent Good Fair Poor Suggestions/Comments: A. Length of course: Too Long Too Short Just Right B. Scheduling of course should be: Earlier Later Just Right 2. How did you find the program facilities? Excellent Good Fair Poor Comments: 3. How do you rate the technology used during the presentation? Excellent Good Fair Poor Comments: 4. Why did you choose to attend this course? (Check all that apply) Need the MCLE Credits Faculty Topics Covered Other (please specify) Please turn over to page 2 1

2 5. How did you learn about this course? (Check all that apply) NYCLA Flyer NYCLA Postcard CLE Catalog NYCLA Newsletter NYCLA Website New York Law Journal Website NYCLA CLE Other (please specify) Google Search 6. What are the most important factors in deciding which CLE courses to attend (Please rate the factors 1-5, 1 being the most important). Cost Subject matter Location Date and Time Provider Organization of which you are a member Other 6. Are you a member of NYCLA? Yes No III If NYCLA were creating a CLE program specifically tailored to your practice needs, what topics or issues would you want to see presented? 2

3 NYCLA CLE I NSTITUTE NEW YORK BRIDGE THE GAP SESSION A: CPLR UPDATE 2016 Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers Association, 14 Vesey Street, New York, NY scheduled for January 11,2016 Faculty: David Paul Horowitz, Esq 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: 2 Professional Practice/Law Practice Management; 2 Ethics. 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, 2 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.

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5 Information Regarding CLE Credits and Certification New York Bridge the Gap Session A: CPLR Update 2016 January 11, 2016; 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. iii. iv. 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. 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. 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!

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7 New York County Lawyers Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y (212) New York Bridge the Gap Session A CPLR Update 2016 Monday, January 11, :30 PM to 9:00 PM Faculty: David Paul Horowitz, Esq. AGENDA 5:00 PM 5:30 PM Registration 5:30 PM 5:40 PM Introductions and Announcements 5:40 PM 9:00 PM Presentation and Discussion. ***There will be a 10 minute break during the program

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9 DAVID PAUL HOROWITZ is a member of Geringer, McNamara & Horowitz in New York City. He has represented parties in personal injury, professional negligence, and commercial cases for over twenty-six years. In addition to his litigation practice, he acts as a private arbitrator, mediator and discovery referee. He is the author of Bender s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the most recent supplement to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School and will lecture on that topic, on behalf of the New York State Board of Bar Examiners, to candidates for the July 2016 bar exam, serves as an expert witness and is a frequent lecturer and writer on civil practice, evidence, ethics, and alternative dispute resolution issues. He serves on the Office of Court Administration s Civil Practice Advisory Committee, is active in a number of bar associations, and served as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee. He received a B.A. from Lehman College, City University of New York and his law degree from Fordham University School of Law.

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11 New York County Lawyers Association 2016 C.P.L.R. Update January 11, 2016 by David Paul Horowitz Geringer, McNamara & Horowitz, LLP 5 Hanover Square 3 rd Floor New York, N.Y Telephone: Facsimile: david@newyorkpractice.org 2016 David Paul Horowitz, All Rights Reserved Copyright 2016 David Paul Horowitz, All Rights Reserved

12 Hell, there are no rules here we re trying to accomplish something. Thomas A. Edison Copyright 2016 David Paul Horowitz, All Rights Reserved 2

13 2016 C.P.L.R. Update I. C.P.L.R. Amendments a Amendments i. Amendment to C.P.L.R. 3212(b), Effective December 11, 2015 LAWS OF NEW YORK, CHAPTER 529 AN ACT to amend the civil practice law and rules, in relation to the use in motions of expert affidavits in summary judgment Became a law December 11, 2015, with the approval of the Governor. Passed by a majority vote, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Subdivision (b) of rule 3212 of the civil practice law and rules, as amended by charter 651 of the laws of 1973, is amended to read as follows: (b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a crossmotion. 2. This act shall take effect immediately and shall apply to all pending cases for which a summary judgment motion is made on or after the date on which it shall have become law and all cases filed on or after such effective date. Copyright 2016 David Paul Horowitz, All Rights Reserved 3

14 Memo In Support This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice. This measure would amend section 3212(b) to the CPLR to effect a very narrow, but much needed, change in the procedural law concerning the admissibility of expert affidavits in civil summary judgment motions. It would, in effect, legislatively overrule a line of decisions, starting with Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2d Dep t 2008), and continuing, inter alia, with Garcia v. New York, 98 A.D.3d 857, 951 N.Y.S.2d 2 (1 st Dep t 2012), Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2d Dep t 2012), and, most recently, DeSimone v. New York, 2014 NY Slip Op (1 st Dep t 2014). These First and Second Department cases have permitted trial judges, as an exercise of discretion, to decline to consider expert affidavits submitted in support of, or in opposition to, summary judgment motions where the proponent of the affidavit did not serve a CPLR 3101(d)(1)(i) exchange prior to the filing of the note of issue. Current Law 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. CPLR 3101(d)(1)(i) (Emphasis added). Copyright 2016 David Paul Horowitz, All Rights Reserved 4

15 CPLR 3101(d)(1)(i) makes no mention of the filing of the note of issue, and does not link or limit the exchange of experts to a period of time at or prior to the filing of the note of issue, or at or prior to the completion of fact discovery, or anything else. The only reference point stated for the exchange of experts refers to an insufficient period of time before the commencement of trial... Id. In Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2d Dep t 2008), the 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. Thereafter, in Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2d Dep t 2012)the Second Department appeared to back away from its prior holding in Singletree, holding in Rivers that while post-note of issue expert exchange is but one fact for the court to consider, it nonetheless remains a factor. In the First Department, in Garcia v. New York, 98 A.D.3d 857, 951 N.Y.S.2d 2 (1 st Dep t 2012), without citing Singletree or its progeny (Garcia was decided before Rivers), 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). Garcia was cited as the sole authority in a recent 2014 First Department decision, DeSimone v. New York, 2014 NY Slip Op (1 st Dep t 2014), where that court held: The court providently exercised its discretion in denying plaintiff's cross motion to submit a disclosure of his expert professional engineer, since it was first submitted in opposition to defendants' motions for summary judgment dismissing the complaint, and subsequent to the filing of the note of issue and certificate of readiness (citation omitted). Both Departments have issued decisions with contrary holdings. See, e.g.: Ramsen A. v. New York City Hous. Auth., 112 A.D.3d 439, 976 N.Y.S.2d 73 (1 st Dep t 2013): CPLR 3101(d)(1)(i) does not require a party to retain an expert at any particular time (citation omitted). "[E]ven where one party requests trial expert disclosure during discovery pursuant to CPLR 3101(d)(1)(i), a recipient party who does not respond to the request until after the filing of the note of issue and certificate of readiness will not automatically be subject to preclusion of its expert's trial testimony" (citation omitted). Buchanan v. Mack Trucks, Inc NY Slip Op 318 (2d Dep t 2014) (citing Rivers): "[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" (citations Copyright 2016 David Paul Horowitz, All Rights Reserved 5

16 omitted). Rowan v. Cross Country Ski & Skate, 42 A.D.3d 563, 840 N.Y.S.2d 414 (2d Dep t 2007): Contrary to the plaintiff's contention, the court properly permitted the defendants' expert to testify. "CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proferring expert testimony merely because of noncompliance with the statute unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" (citations omitted). Here, the record does not support a conclusion that the defendants' delay in retaining their expert or in serving their expert information was intentional or willful. Furthermore, disclosure of the expert information was not made on the eve of trial since the plaintiff had two weeks within which to review the material prior to the date when the trial was scheduled to begin. Moreover, any potential prejudice to the plaintiffs could have been eliminated by an adjournment of the trial (citation omitted). The Advisory Committee s View Our Advisory Committee believes that the Singletree/Rivers holdings (a) impose a temporal requirement for noticing expert witnesses that contravenes the provisions of CPLR 3101(d)(1)(i) and, in effect, precludes otherwise admissible expert testimony, and (b) contravenes the longstanding application of CPLR 3101(d)(1)(i) to the noticing of experts for trial in relation to the date set for trial of an action or proceeding. Compounding the difficulties practitioners face in navigating the conflicting holding cited above are the multitude of different Judicial District, County, and individual judges rules addressing the timing of expert disclosure, many of which are at odds with CPLR 3101(d)(1)(i). Another factor complicating the timing of expert disclosure is the continuing practice in certain counties to permit routine post-note of issue disclosure. This Measure This measure would not alter the circumstances in which expert testimony may be offered. Nor would it alter the rules concerning the admissibility of the reports or data on which the testimony may be premised. This measure is designed to aid in establishing uniformity in practice state-wide, reducing confusion among members of the bench and bar as to the timing of expert disclosure, and making certain that where expert testimony is required or desired in support or opposition to a summary motion, the functional equivalent of a trial, that parties have the same latitude to utilize expert testimony as they do at trial. Copyright 2016 David Paul Horowitz, All Rights Reserved 6

17 This measure, which would have no fiscal impact on the public treasury, would take effect immediately and apply to all actions pending on or after such effective date. Legislative History: None. New proposal. Copyright 2016 David Paul Horowitz, All Rights Reserved 7

18 ii. Mandatory E-Filing, Effective August 31, 2015 E-filing has been an on-going pilot project in New York State courts for several years. By virtue of several laws enacted over the past 15 years, the Legislature has authorized OCA to implement e-filing in certain counties and certain courts. In some situations, e-filing is mandatory; in others, it s consensual among the parties to a given action (see Siegel, New York Practice 63 [Connors 5th ed]). By a new law, L. 2015, ch. 237, effective August 31, 2015, the Legislature (1) permanently authorized mandatory e-filing in Supreme Court, Surrogate s Court, and the New York City Civil Court; (2) expanded the authority of OCA to designate classes of cases for mandatory e-filing (subject to certain exclusions and conditions); and (3) provided that unrepresented litigants are automatically excluded from e-filing unless they affirmatively consent to participate in the e-filing program. OCA may make e-filing mandatory in any county, provided that OCA obtains the consent of the relevant county clerk, and consults with and considers comments from specified stakeholders. Several Uniform Rules have been amended as a result of the new law (see, e.g., 22 NYCRR b, bb). N.B.: Under the new law, mandatory e-filing is not permitted in matrimonial actions, election law proceedings, proceedings under CPLR 70 and 78, proceedings under the Mental Hygiene Law, certain residential mortgage foreclosure actions, and certain consumer credit actions (22 NYCRR bb[a][2]). Consensual e-filing is permissible in the actions and proceeding excluded from mandatory e-filing. Copyright 2016 David Paul Horowitz, All Rights Reserved 8

19 b Amendments i. CPLR 2106 Effective January 1, 2015 R Affirmation of truth of statement by attorney, physician, osteopath or dentist [Until Jan 1, 2015, Rule 2106 reads as set out below] The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit.[eff Jan 1, 2015, Rule 2106 reads as set out below and it section heading reads as follows: "Affirmation of truth of statement [fig 1] ] (a) The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit. (b) [Added, L 2014] The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form: I affirm this [-----] day of [ ], [ ], under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.(signature) Copyright 2016 David Paul Horowitz, All Rights Reserved 9

20 ii. CPLR 2214 Effective January 1, 2015 R Motion papers; service; time (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded. (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least [fig 1] sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time. (c) Furnishing papers to the court. Each party shall furnish to the court all papers served by [fig 1] that party. The moving party shall furnish [fig 2] all other papers not already in the possession of the court necessary to the consideration of the questions involved. Except when the rules of the court provide otherwise, in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system. Where such papers are in the possession of an adverse party, they shall be produced by [fig 3] that party at the hearing on notice served with the motion papers. 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. (d) Order to show cause. The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein. An order to show cause against a state body or officers must be served in addition to service upon the defendant or respondent state body or officers upon the attorney general by delivery to an assistant attorney general at an office of the attorney general in the county in which venue of the action is designated or if there is no office of the attorney general in such county, at the office of the attorney general nearest such county. Copyright 2016 David Paul Horowitz, All Rights Reserved 10

21 iii. CPLR 3113(c) Effective September 23, 2014 R Conduct of the examination (a) Persons before whom depositions may be taken. Depositions may be taken before any of the following persons except an attorney, or employee of an attorney, for a party or prospective party and except a person who would be disqualified to act as a juror because of interest in the event or consanguinity or affinity to a party:1. within the state, a person authorized by the laws of the state to administer oaths; 2. without the state but within the United States or within a territory or possession subject to the jurisdiction of the United States, a person authorized to take acknowledgments of deeds outside of the state by the real property law of the state or to administer oaths by the laws of the United States or of the place where the deposition is taken; and 3. in a foreign country, any diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within, the country, or a person appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed "To the Appropriate Authority in (here name the state or country)." (b) Oath of witness; recording of testimony; objections; continuous examination; written questions read by examining officer. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction, record the testimony. The testimony shall be recorded by stenographic or other means, subject to such rules as may be adopted by the appellate division in the department where the action is pending. All objections made at the time of the examination to the qualifications of the officer taking the deposition or the person recording it, or to the manner of taking it, or to the testimony presented, or to the conduct of any person, and any other objection to the proceedings, shall be noted by the officer upon the deposition and the deposition shall proceed subject to the right of a person to apply for a protective order. The deposition shall be taken continuously and without unreasonable adjournment, unless the court otherwise orders or the witness and parties present otherwise agree. In lieu of participating in an oral examination, any party served with notice of taking a deposition may transmit written questions to the officer, who shall propound them to the witness and record the answers. (c) Examination and cross-examination. Examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court, except that a non-party deponent's counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party. When the deposition of a party is taken at the instance of an adverse party, the deponent may be cross-examined by his or her own attorney. Cross-examination need not be limited to the subject matter of the examination in chief. (d) The parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically. The stipulation shall designate reasonable provisions to ensure that an accurate record Copyright 2016 David Paul Horowitz, All Rights Reserved 11

22 of the deposition is generated, shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may physically be present at the deposition; and shall provide for any other provisions appropriate under the circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means. Copyright 2016 David Paul Horowitz, All Rights Reserved 12

23 iv. CPLR 3122-a Effective January 1, 2015 R 3122-a. Certification of business records (a) Business records produced pursuant to a subpoena duces tecum under rule 3120 shall be accompanied by a certification, sworn in the form of an affidavit and subscribed by the custodian or other qualified witness charged with responsibility of maintaining the records, stating in substance each of the following: 1. The affiant is the duly authorized custodian or other qualified witness and has authority to make the certification; 2. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies thereof are accurate versions of the documents described in the subpoena duces tecum that are in the possession, custody, or control of the person receiving the subpoena; 3. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies produced represent all the documents described in the subpoena duces tecum, or if they do not represent a complete set of the documents subpoenaed, an explanation of which documents are missing and a reason for their absence is provided; and 4. The records or copies produced were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records. (b) A certification made in compliance with subdivision (a) is admissible as to the matters set forth therein and as to such matters shall be presumed true. When more than one person has knowledge of the facts, more than one certification may be made. (c) A party intending to offer at a trial or hearing business records authenticated by certification subscribed pursuant to this rule shall, at least thirty days before the trial or hearing, give notice of such intent and specify the place where such records may be inspected at reasonable times. No later than ten days before the trial or hearing, a party upon whom such notice is served may object to the offer of business records by certification stating the grounds for the objection. Such objection may be asserted in any instance and shall not be subject to imposition of any penalty or sanction. Unless objection is made pursuant to this subdivision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this subdivision, business records certified in accordance with this rule shall be deemed to have satisfied the requirements of subdivision (a) of rule Notwithstanding the issuance of such notice or objection to same, a party may subpoena the custodian to appear and testify and require the production of original business records at the trial or hearing. (d) [Added, L 2014] The certification authorized by this rule may be used as to business records produced by non-parties whether or not pursuant to a subpoena so long as the custodian or other qualified witness attests to the facts set forth in paragraphs one, two and four of subdivision (a) of this rule. Copyright 2016 David Paul Horowitz, All Rights Reserved 13

24 v. CPLR 3216 Effective January 1, 2015 R Want of prosecution (a) [Until Jan 1, 2015, subs (a) and (b) read as set out below] Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits. (b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with: (1) Issue must have been joined in the action; (2) One year must have elapsed since the joinder of issue; (3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed. (a) [Eff Jan 1, 2015, subs (a) and (b) read as set out below] Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits. (b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with: (1) Issue must have been joined in the action; (2) One year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later ; (3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in Copyright 2016 David Paul Horowitz, All Rights Reserved 14

25 complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed. Where the written demand is served by the court, the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation. (c) In the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule serves and files a note of issue within such ninety day period, the same shall be deemed sufficient compliance with such demand and diligent prosecution of the action; and in such event, no such court initiative shall be taken and no such motion shall be made, and if taken or made, the court initiative or motion to dismiss shall be denied. (d) After an action has been placed on the calendar by the service and filing of a note of issue, with or without any such demand, provided, however, if such demand has been served, within the said ninety day period, the action may not be dismissed by reason of any neglect, failure or delay in prosecution of the action prior to the said service and filing of such note of issue. (e) In the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule fails to serve and file a note of issue within such ninety day period, the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action. (f) The provisions of this rule shall not apply to proceedings within rule thirty-four hundred four. Copyright 2016 David Paul Horowitz, All Rights Reserved 15

26 c. Rule Changes Redaction Of Confidential Personal Information 22 NYCRR 202.5(e) (effective January 1, 2015) 22 NYCRR 202.5(e) (compliance with which is mandatory effective March 1, 2015) requires parties to omit or redact confidential personal information from court filings. Confidential personal information means: taxpayer identification numbers; Social Security numbers; employer identification numbers; dates of birth (except year); full names of minors; financial account numbers (except last four digits) (see 202.5[e][1]). The rule does not apply in matrimonial actions, Surrogate s Court proceedings, or Mental Hygiene Law article 81 matters. The court, sua sponte or on the motion of a party, may take corrective action if a filing contains confidential personal information (202.5[e][2]). A party may apply for leave to include confidential personal information in court filings (202.5[e][3]). Copyright 2016 David Paul Horowitz, All Rights Reserved 16

27 II. Spoliation a. Amendment To Fed.R.Civ.P. 37 Effective December 1, 2015 Significant amendments to the Federal Rules of Civil Procedure took effect on December 1, Relevant to ESI and spoliation are the change to Rule 37: Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. The 2015 amendment to FRCP 37(e) expressly rejects the Second Circuit approach: "This subdivision authorizes courts to use specified and very severe measures to address or deter failures to preserve electronically stored information, but only on finding that the party that lost the information acted with the intent to deprive another party of the information's use in the litigation. It is designed to provide a uniform standard in federal court for use of these serious measures when addressing failure to preserve electronically stored information. It rejects cases such as Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence." (Advisory Comments). Copyright 2016 David Paul Horowitz, All Rights Reserved 17

28 b. Court of Appeals Accepts the First Department s Adoption of Zubulake Pegasus Aviation I, Inc. v Varig Logistica S.A., 2015 NY Slip Op 09187, 2015 N.Y. LEXIS 3863 (2015). The First Department s adoption of related e-discovery holdings from Zubulake was cited with approval by the Court of Appeals, in Pegasus Aviation I, Inc. v Varig Logistica S.A., 1 in determining first, whether a spoliation sanction was warranted and, second, if warranted, what the appropriate sanction should be: A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a "culpable state of mind," and "that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Voom HD Holdings LLC v Echostar Satellite L.L.C., [citation omitted], quoting Zubulake v UBS Warburg LLC [citation omitted]). Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed (see Zubulake [citation omitted]). On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party's claim or defense (citation omitted). Where the evidence spoliated is in electronic form, the First Department has adopted the well-known federal rule set forth in Zubulake v. UBS Warburg 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 ensure the preservation of relevant documents. 2 The First Department explained what was required once the duty to preserve was triggered in Voom HD Holdings, LLC v. EchoStar Satellite, LLC: 3 Once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data NY Slip Op 09187, 2015 N.Y. LEXIS 3863 (2015). 2 Voom HD Holdings, LLC v. EchoStar Satellite, LLC, 93 A.D.3d 33, 36, 939 N.Y.S.2d 321, 324 (1st Dep t 2012). 3 Voom HD Holdings, LLC v. EchoStar Satellite, LLC, 93 A.D.3d 33, 36, 939 N.Y.S.2d 321, 324 (1st Dep t 2012). Copyright 2016 David Paul Horowitz, All Rights Reserved 18

29 [While it is the best practice that this litigation hold be in writing, we recognize that there might be certain circumstances, for example, a small company with only a few employees, in which an oral hold would suffice]. Regardless of its nature, a hold must direct appropriate employees to preserve all relevant records, electronic or otherwise, and create a mechanism for collecting the preserved records so they might be searched by someone other than the employee. The hold should, with as much specificity as possible, describe the ESI at issue, [For example, ESI may exist on employees home computers, on flash drives or Blackberrys, in a cloud computing infrastructure or off-site on a remote server or back-up tapes] direct that routine destruction policies such as auto-delete functions and rewriting over s cease, and describe the consequences for failure to so preserve electronically stored evidence. In certain circumstances, like those here, where a party is a large company, it is insufficient, in implementing such a litigation hold, to vest total discretion in the employee to search and select what the employee deems relevant without the guidance and supervision of counsel. In 915 Broadway v. Paul, Hastings, Janofsky & Walker, 4 one of the first cases applying Voom, a trial court imposed the most stringent spoliation sanction available, and struck the plaintiff s amended complaint, for the spoliation of ESI: 5 Generally, dismissal of a cause of action is warranted where the destroyed evidence is key to the innocent party s claims or defenses (citation omitted). However, [i]t is fundamentally unfair to require [a party] to come forward with evidence that the destroyed [documents] are key evidence, where [the party] has no way of knowing what records were destroyed. That is exactly why there are sanctions for spoliation. [The party] will never know what was in the records which is why [the spoliating party] should have preserved the records (citation omitted). * * * These failures resulted in the destruction of relevant electronic documents, which has prevented Paul Hastings from defending the causes of action asserted against it. It is fundamentally unfair to require Paul Hastings to defend itself in a vacuum NY Slip Op 50285(U), 34 Misc. 3d 1229(A) (Supreme Court, New York County 2012) Broadway Assoc. LLC v. Paul, Hastings, Janofsky & Walker, LLP, 2012 NY Slip Op 50285(U), 34 Misc. 3d 1229(A) (Supreme Court, New York County 2012). Copyright 2016 David Paul Horowitz, All Rights Reserved 19

30 The First Department held, in Pegasus Aviation I, Inc. v. Varig Logistica S.A., 6 that a party s failure to issue a litigation hold to the members of its organization directing preservation of ESI is not per se gross negligence. On appeal, the majority of Court of Appeals affirmed the appellate division s determination that the spoliating party s conduct constituted negligence, not gross negligence, and remanded to the trial court for a determination as to whether the destroyed evidence was relevant and, if so, the sanction, if any, that was warranted. 7 The First Department, in Strong v. City of New York, 8 distinguished between electronic spoliation cases and traditional spoliation cases, holding that New York s traditional common law rules for spoliation continued to govern non-esi cases. However, it is not clear that this distinction survives the decision of the Court of Appeals in Pegasus, above. 9 6 Pegasus Aviation I, Inc. v. Varig Logistica S.A., 118 A.D.3d 428, 987 N.Y.S.2d 350 (1st Dep t 2014). 7 Pegasus Aviation I, Inc. v. Varig Logistica S.A., 2015 NY Slip Op 09187, 2015 N.Y. LEXIS 3863 (2015). 8 Strong v. City of New York, 112 A.D.3d 15, 23, 973 N.Y.S.2d 152, 158 (1st Dep t 2013) ( 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. ). 9 Pegasus Aviation I, Inc. v. Varig Logistica S.A., 2015 NY Slip Op 09187, 2015 N.Y. LEXIS 3863 (2015). Copyright 2016 David Paul Horowitz, All Rights Reserved 20

31 Fourth Department Holds Duty To Preserve Arises When Litigation Should Have Been Anticipated Simoneit v. Mark Cerrone, Inc., 122 A.D.3d 1246, 996 N.Y.S.2d 810 (4 th Dep t 2014) In a motor vehicle accident case involving a school bus, the Fourth Department reversed the trial court and imposed a spoliation sanction against the defendant bus company, striking its affirmative defenses alleging brake failure due to defendant s postaccident replacement and destruction of the allegedly defective parts. The court held the defendant should have anticipated that litigation was likely, where several of the school children were removed from the scene by ambulance and the brake parts were a crucial piece of evidence to support the defense. Jury Question Whether Spoliation Sanction Warranted Pennachio v. Costco Wholesale Corp., 119 A.D.3d 662, 990 N.Y.S.2d 54 (2d Dep t 2014) Plaintiff alleged he was injured when he reached for a broken shrink-wrapped glass jar of olives on a store shelf in a store owned by the defendant. While defendant originally retained the subject jar and marked it as evidence, not to be discarded, the jar was later discarded inadvertently. While the lesser sanction of an adverse inference may be appropriate for spoliation of the subject jar (citations omitted), under the circumstances of this case, an issue of fact exists as to whether spoliation of relevant evidence occurred. The sanction of an adverse inference for spoliation of evidence is not warranted when the evidence destroyed is not relevant to the ultimate issues to be determined in the case (citation omitted). As noted above, the plaintiff submitted an expert affidavit averring that she could have determined how long the jar had been broken by analyzing the mold contained in the jar, and the defendant submitted an expert affidavit disputing that such a conclusion could have been reached. If the opinion of the defendant's expert were credited, then an adverse inference would not be warranted, because the lost evidence would not have been relevant to the plaintiff's case (citation omitted). Thus, this issue of fact should be placed before the jury, along with the inferences to be drawn therefrom (citations omitted). The jury should be instructed that, if it credits the opinion of the Copyright 2016 David Paul Horowitz, All Rights Reserved 21

32 defendant's expert that no conclusion could have been reached with reasonable certainty regarding how long the jar had been broken by analyzing the mold contained in the jar, then no adverse inference should be drawn against the defendant. On the other hand, the jury should be advised that, if it credits the opinion of the plaintiff's expert that she could have determined how long the jar had been broken by analyzing the mold inside, then it would be permitted to draw an adverse inference against the defendant (citations omitted). Spoliation of ESI AJ Holdings Group, LLC v IP Holdings, LLC, 129 A.D.3d 504, 11 N.Y.S.3d 55 (1 st Dep t 2015) Plaintiff s failure to ensure that its principals, who were all involved in the instant transactions, preserved their s on various accounts used by them, and its failure to implement any uniform or centralized plan to preserve data or even the various devices used by the key players in the transaction, demonstrated gross negligence with regard to the deletion of the s (citation omitted). This gross negligence gave rise to a rebuttable presumption that the spoliated documents were relevant (id.). However, plaintiff sufficiently rebutted that presumption by demonstrating that the defenses available to defendants all necessarily turned on communications to or with them, not plaintiff s internal communications. In particular, defendants claim that there was an oral modification to the parties contract, whereby plaintiff waived the termination provisions. This is despite the fact that the agreement contained a clause barring oral modifications. In such a circumstance, defendants must establish an executed oral modification, or partial performance or estoppel unequivocally referable to the alleged oral modification (citation omitted). Because defendants can have only relied on communications they received from plaintiff to establish this defense, there is no sense in which the deleted internal s of plaintiff would be relevant. As such, it was error to impose spoliation sanctions. The IAS court correctly held that plaintiff s motion to renew its previous summary judgment motion was actually an untimely motion to reargue, as plaintiff based it not on any newly discovered information, but on the theory that the IAS court had overlooked the integration clause in the agreement (citation omitted). Moreover, as theias court held, plaintiff can bring the motion again at the close of discovery. Copyright 2016 David Paul Horowitz, All Rights Reserved 22