Rosen v. Mosby

• Decision Date: 27 February 2020
• Docket Number: 525204,525203
• Citation: 180 A.D.3d 1253,121 N.Y.S.3d 166
• Court: New York Supreme Court — Appellate Division
• Parties: Steven ROSEN, Appellant, v. Katherine MOSBY, Respondent.

180 A.D.3d 1253

121 N.Y.S.3d 166

Steven ROSEN, Appellant,

v.Katherine MOSBY, Respondent.

525203

525204

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 17, 2020

Decided and Entered: February 27, 2020

Steven Rosen, New York City, appellant pro se.

Freeman Howard, PC, Hudson (Paul M. Freeman of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Clark, Mulvey and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J. Appeals (1) from an order of the Supreme Court (Mott, J.), entered August 30, 2016 in Columbia County, which, among other things, denied plaintiff's motion to strike the note of issue, (2) from an order of said court, entered January 9, 2017 in Columbia County, which, among other things, denied plaintiff's motion to renew and reargue, (3) from a judgment of said court, entered March 2, 2017 in Columbia County, upon a verdict rendered in favor of defendant, and (4) from an order of said court, entered July 18, 2017 in Columbia County, which denied plaintiff's motion to set aside the verdict.

The facts of this case are familiar to this Court, as they have been the subject of a prior appeal ( 148 A.D.3d 1228, 51 N.Y.S.3d 629 [2017], lv dismissed 30 N.Y.3d 1037, 69 N.Y.S.3d 235, 91 N.E.3d 1214 [2017] ). As relevant here, plaintiff and defendant own adjoining parcels of real property in the Town of Ancram, Columbia County.¹ In the spring of 2012, defendant began clearing and grading a portion of her property, as well as installing a nine-foot wooden privacy fence along her property line. In September 2012, plaintiff commenced this action alleging six causes of action stemming from, as relevant here, his claim that defendant and/or her agents trespassed and injured his property.² Defendant filed a pre-answer motion to dismiss the complaint, which motion Supreme Court (Zwack, J.) denied. Defendant thereafter answered, asserting 12 affirmative defenses and two counterclaims.

By order entered April 2014, Supreme Court denied defendant's motion for an order directing plaintiff to comply with outstanding discovery demands. By order entered August 2014, Supreme Court (Mott, J.) also denied plaintiff's motion for partial summary judgment and granted defendant's cross motion for partial summary judgment, dismissing plaintiff's first four causes of actions. Supreme Court thereafter granted plaintiff leave to amend his complaint on two separate occasions to add an additional eight causes of action alleging negligence, conversion of woody material, cutting and removing trees and timber (see RPAPL 861 ), tortious surveillance, indemnification, conversion of a signpost, malicious prosecution and declaratory judgment. By order entered January 2015, Supreme Court granted defendant's second motion for partial summary judgment, dismissing plaintiff's causes of action for conversion of a signpost, indemnification and declaratory judgment.³ Supreme Court also dismissed plaintiff's subsequent motion to reargue. Defendant subsequently appealed from the April 2014 order, and plaintiff appealed from the August 2014 and January 2015 orders granting defendant partial summary judgment, as well as the two orders denying his motions for reargument ( 148 A.D.3d at 1234, 51 N.Y.S.3d 629 ). This Court dismissed plaintiff's appeals from the orders denying his motions to reargue and affirmed Supreme Court's three other orders ( id. ).

Between September 2013 and February 2016, Supreme Court issued a total of five successive scheduling orders, each specifying deadlines for the completion of discovery and filing of a note of issue. The fifth and final scheduling order required plaintiff to complete discovery and file a note of issue by July 8, 2016. Plaintiff failed to file a note of issue by this date and defendant did so on July 13, 2016. Plaintiff moved to strike defendant's note of issue, and Supreme Court denied plaintiff's motion, determining that plaintiff had ample time over the course of three years to complete discovery. By order entered January 9, 2017, Supreme Court denied plaintiff's motion to renew and reargue.⁴

A February 2017 trial ensued, during which Supreme Court dismissed plaintiff's injury to property and negligence causes of action for failure to establish a prima facie case. At the conclusion of the trial, the jury returned a verdict for defendant on the four remaining causes of action, and a judgment was entered thereon on March 2, 2017. Plaintiff thereafter moved pursuant to CPLR 4404 to set aside the verdict, which motion Supreme Court denied in July 18, 2017. Plaintiff appeals from the August 2016 order, the January 2017 order, the March 2017 judgment and the July 2017 order.⁵

Supreme Court did not abuse its discretion in denying plaintiff's motion to strike the note of issue. "While a note of issue will generally be stricken if the case is not ready for trial, the motion to strike can be denied where the parties had sufficient time to complete discovery" ( Kropp v. Town of Shandaken, 91 A.D.3d 1087, 1091–1092, 937 N.Y.S.2d 345 [2012] [internal quotation marks and citation omitted] ). Here, plaintiff had approximately three years to complete discovery. Following a February 2016 compliance conference, Supreme Court issued its fifth and final scheduling order, specifically informing plaintiff that this was "absolutely the last extension" that he was going to receive to complete discovery and that, if he failed to file a note of issue by July 8, 2016, his complaint would be subject to dismissal. Despite Supreme Court's admonition, plaintiff failed to complete nonparty depositions, failed to appear for the third day of continuation of defendant's examination before trial and failed to file a note of issue by Supreme Court's July 8, 2016 deadline. Plaintiff's contention that the court failed to assist him in obtaining discovery is meritless. Supreme Court ruled that plaintiff could obtain a copy of certain surveillance footage from defendant's surveillance company at his own cost; however, plaintiff elected not to obtain said footage after defendant timely provided him with the cost estimate for same. Supreme Court also allowed plaintiff to complete depositions for nonparty witnesses by May 31, 2013, despite the fact that plaintiff did not comply with the court-ordered deadline for providing notice; plaintiff thereafter canceled the scheduled depositions and did not seek enforcement of the subpoenas. Given that Supreme Court granted repeated extensions for plaintiff to complete discovery, Supreme Court properly exercised its discretion in denying plaintiff's motion to strike the note of issue (see id. at 1091–1092, 937 N.Y.S.2d 345 ; Ireland v. GEICO Corp., 2 A.D.3d 917, 917–918, 768 N.Y.S.2d 508 [2003] ; Simmons v. Kemble, 150 A.D.2d 986, 987, 541 N.Y.S.2d 875 [1989] ).

Supreme Court's evidentiary rulings did not deprive plaintiff of a fair trial. Supreme Court is accorded broad discretion in making evidentiary rulings and, absent an abuse of discretion, its rulings should not be disturbed on appeal (see Mazella v. Beals, 27 N.Y.3d 694, 709, 37 N.Y.S.3d 46, 57 N.E.3d 1083 [2016] ; Orser v. Wholesale Fuel Distribs. CT, LLC, 173 A.D.3d 1519, 1520, 105 N.Y.S.3d 137 [2019], lv denied 34 N.Y.3d 909 [Feb. 13, 2020] ). Initially, plaintiff's claims with respect to the testimony of Jessica Quinn are unpreserved for our review, as he failed to raise an objection to her testimony upon the ground that Quinn was not included on a pretrial witness list and subsequently failed to respond to defendant's objection during cross-examination, which limited inquiry into whether she was an employee of defendant (see generally Matter of Davis v. Annucci, 140 A.D.3d 1432, 1433, 36 N.Y.S.3d 896 [2016], appeal dismissed 28 N.Y.3d 1109, 45 N.Y.S.3d 352, 68 N.E.3d 77 [2016] ; Matter of Seftel [Commissioner of Labor], 31 A.D.3d 1011, 1012, 819 N.Y.S.2d 175 [2006] ). Supreme Court properly permitted Patricia Brown to testify in connection with plaintiff's malicious prosecution claim, as "nothing in CPLR article 31 requires a party to generate a witness list" prior to trial ( Hunter v. Tryzbinski, 278 A.D.2d 844, 844, 719 N.Y.S.2d 422 [2000] ) and plaintiff made no demand for discovery with regard to the identity of witnesses following the filing of his amended complaint with respect to said claim (see Cruz v. City of New York, 132 A.D.3d 593, 594, 18 N.Y.S.3d 617 [2015] ).⁶ Supreme Court did not improperly preclude testimony of Timothy Lynch, plaintiff's expert, regarding the value of the purported damages to the shared roadway; plaintiff's expert disclosure failed to provide notice that Lynch would be offering testimony as to the cost of damages, and plaintiff failed to otherwise demonstrate good cause for such delayed expert disclosure (see CPLR 3101[d][1][i] ; Lasher v. Albany Mem. Hosp., 161 A.D.3d 1326, 1332, 77 N.Y.S.3d 544 [2018] ).⁷

Supreme Court did not err in precluding plaintiff's handwritten memorandum with regard to his interactions with Quinn. Plaintiff testified that he readily recalled the details of his conversation with her, thereby precluding admission of the memorandum as a past recollection recorded (see Landsman v. Village of Hancock, 296 A.D.2d 728, 732, 745 N.Y.S.2d 258 [2002], appeal dismissed 99 N.Y.2d 529, 752 N.Y.S.2d 586, 782 N.E.2d 563 [2002] ). Supreme Court appropriately permitted defense counsel to read certain portions of defendant's deposition testimony at trial, as it was directly responsive to those portions of defendant's deposition that plaintiff was previously permitted to read into the record (see CPLR 3117[b] ; Powers v. Metropolitan Transp. Auth., 289 A.D.2d 216, 216, 734 N.Y.S.2d 845 [2001] ).⁸ Plaintiff's remaining claims regarding admission of the testimony of Bridget Madigan–Sharp, submission of purportedly prejudicial photographs and the court's issuance of a subpoena for the Chief Assistant District Attorney of Columbia County have been reviewed and found to be...