A MOTION IN LIMINE

90th ST. CORP. v. 203 W. 90th ST. RETAIL, LLC, 2021 NY Slip Op 30827 - NY Co.: Supreme Court March 10, 2021:

"A motion in limine may be used as a means to exclude or admit evidence before trial (see Woodie v Azteca Intl. Corp., 60 AD3d 535, 536 [1st Dept 2009]). However, in the present instance, the relevance and admissibility of several of the items the parties speak of now has been, as a practical matter, already resolved by virtue of the disposition remaining in the wake of the court's summary judgment decision. For instance, the email dated March 31, 2015, at 6:14 p.m., from John R. Ramsen, sent to Michael S. Cole (Defendant's Bates No. LB000038) (NYSCEF Doc 153), which Defendant objects to in its cross-motion in limine, does not contain any information relevant to the second counterclaim — the only counterclaim left to be tried — and is, therefore, irrelevant and inadmissible at trial. The Olshever Emails (NYSCEF Doc 183), which Defendant objects to, are also not relevant to the second counterclaim and are, therefore, also inadmissible at trial.

Defendant does not object to the admissibility of the remaining ten of the eleven emails Plaintiff seeks to admit into evidence (NYSCEF Docs 154-164). Therefore, those items are deemed admissible at trial.

Lastly, Plaintiff seeks to strike the Errata Sheet. CPLR 3116(a) provides relevant guidance as follows:

Signing. The 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 the reasons given by the witness for making them. The deposition shall then be signed by the witness before any officer authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.

The Ruiz deposition was held on October 24, 2017, and he signed the Errata Sheet on December 28, 2017. Plaintiff asserts that this was untimely because the signing took place more than sixty days after the deposition. Nevertheless, Defendant's counsel has affirmed that she did not receive a copy of the deposition transcript until November 2, 2017, as evidenced by the transcript transmittal letter of the same date from Plaintiff's counsel (NYSCEF Doc 178). Plaintiff's counsel does not deny that the transcript was transmitted to Defendant's counsel on November 2, 2017. Therefore, the court finds that the Errata Sheet was timely signed within sixty days of Plaintiff's transmission of the deposition transcript to Defendant's counsel.

But, Plaintiff asserts another, separate, ground for the striking of the Errata Sheet; to wit, that it seeks to change the substance of Mr. Ruiz' actual deposition testimony, a usage that is improper as a post-deposition way of extricating one's self from clear and unambiguous live testimony (see, e.g., Torres v Bd. of Educ. (137 AD3d 1256 [2d Dept 2016]). The court has compared the Errata Sheet to the recorded testimony and is prepared to analyze same hereinbelow. But first, it is important to note that Mr. Ruiz' deposition was defended by not one; but two, attorneys from Defendant's legal team (see NYSCEF Doc 131 at 2). Yet — at no time did either of those two attorneys object to the form of any of the questions cited in the Errata Sheet (NYSCEF Doc 164) on the grounds of confusion, or language difficulty on Mr. Ruiz' part, or on any other grounds. Moreover, no interpreter was requested by those attorneys, and Mr. Ruiz' answers, as recorded, were completely responsive to the questions, and with no complaint whatsoever from him as to his comprehension. Nor did Mr. Ruiz, either on his own or at the request of either of Defendant's two attorneys, ask Plaintiff's counsel for an opportunity to go back on the record for purposes of any clarification. In fact, at the outset of the deposition, Mr. Ruiz was asked by Plaintiff's counsel to let him know if he does not understand any question (NYSCEF Doc 131 at 2). With that preface, the following observations are made by this court, referencing a sampling of the items dealt with in the Errata Sheet:

Transcript Page 22, Line 23, contains a straight answer from Mr. Ruiz — "No" — to the question whether he saw certain "personal property or other materials" (NYSCEF Doc 131). The Errata Sheet (NYSCEF Doc 164) seeks to constrict that answer to "fixtures" only.

Transcript Page 22, Line 25, contains a straight answer from Mr. Ruiz — "Completely clean" — to the question whether the Premises in June 2015 [the month after Defendant's vacatur from the Premises] was "completely clean." The Errata Sheet seeks to constrict that answer to "fixtures" only.

Transcript Page 25, Line 19, contains a straight answer from Mr. Ruiz — "It was outside the premises" — to the question of how the compressor was installed. The Errata Sheet seeks to inject equivocation into Mr. Ruiz' straight answer by adding qualifiers like "I believe" and "I am not sure." The same is true at Transcript Page 25, Line 23, where Mr. Ruiz testifies that the compressor was attached to the roof by "Screw." The Errata Sheet injects equivocation by adding the qualifier "I'm guessing."

Such injections of equivocation and uncertainty permeate the Errata Sheet (see NYSCEF Doc 164 at 3 ["I am not sure," "I do not know," "I'm guessing"], 4 ["I thought it might have been," "I thought the compressor might have been," "I am guessing"], 5 ["I am guessing"]). In each of those instances, Mr. Ruiz' actual answers were direct and unequivocal (see, Transcript [NYSCEF Doc 131] at 26-27). Indeed, when Mr. Ruiz found it appropriate to qualify his answers to certain questions, or to indicate directly that he did not see something asked about, he was perfectly able to do so on the record (see NYSCEF Doc 131 at 26 ["I didn't see the installation...."], 27 ["No, I did not," "I didn't see the installation," "I don't know how...."]).

Defendant submits an affidavit from Mr. Ruiz (NYSCEF Doc 172) which attests that English is his second language and that he is "sometimes confused by or misunderstand[s] the English language" (id. ¶¶ 4, 7). While it is true that a genuine need by a witness to make substantive changes to a deposition transcript can be accommodated by the law in appropriate circumstances (see Cillo v Resjefal Corp., 295 AD2d 257 [1st Dept 2002]), this court's review of the transcript — and the direct and unambiguous responsive answers provided by the witness — do not lead this court to the conclusion that amendment of the transcript is the appropriate avenue in this particular circumstance, especially since, as noted above, neither of Defendant's two attorneys objected at deposition, or moved to strike, or asked for an interpreter, or asked for an on-the-record-opportunity to allow the witness to correct the record. Rather, the appropriate avenue at this post-deposition stage for Defendant to offer Mr. Ruiz' accurate observations is to explore them further during examination at trial and to allow Mr. Ruiz to explain to the trier of fact why his actual observations might in any way diverge from the literal answers he testified to at deposition.

For this reason, Plaintiff's motion in limine to strike the Errata Sheet is granted."

WHEN DRAFTING A MOTION FOR SUMMARY JUDGMENT....

 ....remember that the rules of evidence still apply. The procedures to lay a foundation that apply to a trial also apply to the motion and appellate courts are addressing this especially in foreclosure matters. Thus, in BNH Milf, LLC v Milford St. Props., LLC, 2021 NY Slip Op 01742, Decided on March 24, 2021, Appellate Division, Second Department:

""In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" (Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782). "On its motion for summary judgment, a plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law" (US Bank N.A. v Hunte, 176 AD3d 894, 896 [internal quotation marks omitted]). "A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" (Deutsche Bank Natl. Trust Co. v McGann, 183 AD3d 700, 702).

Here, the affidavits of Steve Hackel, an officer of the plaintiff, and John P. O'Gorman, a vice president of Capital One, submitted in support of the plaintiff's motion, inter alia, for summary judgment, failed to establish the defendants' default in payment under the note (see Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 782). While O'Gorman's affidavit refers to certain default and acceleration letters claimed to have been sent to the defendants, the default letters are conclusory, lack factual basis, and are without evidentiary value (see JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d 718, 719). Additionally, both affidavits failed to establish that Capital One's records were provided to the plaintiff and incorporated into the plaintiff's own records, or that the plaintiff routinely relied upon such records in its business. Thus, the affidavits failed to lay the proper foundation for the admission of Capital One's records (see id. at 720; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 783). Since the plaintiff failed to establish the defendants' default in payment under the note, it failed to establish its prima facie entitlement to judgment as a matter of law, as well as its entitlement to an order of reference and a judgment of foreclosure and sale (see JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d at 720; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 783).

The plaintiff's failure to establish its prima facie entitlement to judgment as a matter of law requires a denial of those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d at 721)."

DIVORCE & MOTIONS & EVIDENCE: CONCLUSORY ALLEGATIONS DON'T WORK

We all know that the matrimonial disputes can get very emotional but if litigants are going to be make motions, whether pre-judgment or post, the rules of evidence still apply.

Battinelli v Battinelli, 2021 NY Slip Op 01741, Decided on March 24, 2021, Appellate Division, Second Department (emphasis supplied):

"....Here, contrary to the plaintiff's contention that it could reasonably be concluded that the defendant was obligated to pay monthly child support in the amount of $7,083.33 rather than the agreed-upon amount, there was no ambiguity in the stipulation of settlement as to the defendant's child support obligation, which the parties agreed was to be $3,000 per month while the plaintiff was receiving maintenance, and $4,000 per month thereafter until the emancipation of the child. The plaintiff did not allege, and she failed to submit any evidence demonstrating, that the defendant was not current with respect to this agreed-upon amount."

"Further, the plaintiff failed to demonstrate a substantial change in circumstances warranting the modification of child support or the parental access schedule (see Casler v Casler, 131 AD3d 664, 665; Whitehead v Whitehead, 122 AD3d 921, 921-922; Matter of Mazzola v Lee, 76 AD3d 531, 532). In addition, her conclusory, nonspecific, and unsubstantiated arguments did not rise to the level of warranting a hearing on either claim (see Isichenko v Isichenko, 161 AD3d 833, 834-835; Matter of Feliciano v King, 160 AD3d 854, 855)."

"Here, the defendant's contentions that the plaintiff disobeyed the stipulation of settlement were generalized and unsubstantiated. Consequently, he failed to meet his burden of proving them by clear and convincing evidence. Accordingly, the Supreme Court properly denied those branches of the cross motion which were to find the plaintiff in civil contempt and to direct her to comply with the parental access schedule."