(a) Time; kind of action
(b) Supporting proof; grounds; relief to either party
(f) Facts unavailable to opposing party
CPLR § 3213 Motion for summary judgment in lieu of complaint
Abdalla v Mazl Taxi, Inc., 2009 NY Slip Op 07566 (App. Div., 2nd, 2009)
The defendants established good cause in support of that branch of their motion which was for leave to extend their time to move for summary judgment until 120 days after receipt of all outstanding discovery, since there was significant discovery outstanding at the time the note of issue was filed (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Jones v Grand Opal Constr. Corp., 64 AD3d 543; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724). Therefore, that branch of their motion should have been granted.
Delacruz v Ostrich Cab Corp., 2009 NY Slip Op 07577 (App. Div., 2nd, 2009)
The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). During his examination of the plaintiff, the defendants' orthopedic surgeon found restrictions in the range of motion of the plaintiff's lumbar spine, which he described as "self-restricted." However, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment without considering the sufficiency of the plaintiff's opposition papers (see Cuevas v Compote Cab Corp., 61 AD3d 812; Coscia v 938 Trading Corp., 283 AD2d 538).
Solomon v Langer, 2009 NY Slip Op 07335 (App. Div., 1st, 2009)
Davila v New York City Tr. Auth., 2009 NY Slip Op 07792 (App. Div., 2nd, 2009)Plaintiff established her entitlement to summary judgment in lieu of complaint on the promissory note made by defendant by establishing execution, delivery, demand and failure to pay (see Israel Discount Bank of N.Y. v 500 Fifth Ave. Assoc., 167 AD2d 203 [1990]). Defendant failed to substantiate, in evidentiary form, his assertion that payments to plaintiff's mother, an alleged business acquaintance since deceased, discharged the note. Defendant sets forth no evidence of misleading conduct on the part of plaintiff indicating that she gave her mother the authority to transact business on her behalf (compare Hallock v State of New York, 64 NY2d 224, 231 [1984]). Furthermore, the note unequivocally stated that payment was to be made directly to plaintiff and the parol evidence rule bars consideration of defendant's purported oral agreement with plaintiff's mother regarding payment of the loan (see Manufacturers Hanover Trust Co. v Margolis, 115 AD2d 406 [1985]). Moreover, it is settled that "invocation of defenses based on facts extrinsic to an instrument for the payment of money only do not [*2]preclude CPLR 3213 consideration" (Alard, L.L.C. v Weiss, 1 AD3d 131,767 NYS2d 11, 2003 N.Y. Slip Op. 18173).
The opposition to the motion submitted by Keyspan and the defendant Liberty Department Store, the only parties who opposed the motion, failed to raise a triable issue of fact (see CPLR 3212[b]). [*2]Moreover, contrary to the contention of those defendants, the appellant's motion was not premature, as they failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence and that facts essential to justify opposition were exclusively within the knowledge or control of the appellant (see Lopez v WS Distrib., Inc., 34 AD3d 759, 760). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d 759). Accordingly, the Supreme Court should have granted the appellant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
and finally,
Stoian v Reed, 2009 NY Slip Op 07713 (App. Div., 3rd, 2009)
We also reject plaintiffs' assertion that Supreme Court abused its discretion in failing to grant them additional time with which to conduct discovery. Although the court had the discretion to permit further discovery if it found that "facts essential to justify opposition [to a motion for summary judgment] may exist but cannot then be stated" (CPLR 3212 [f]; see Clochessy v Gagnon, 58 AD3d 1008, 1010 [2009]), "the nonmoving party must produce some evidence indicating that further discovery 'will yield material and relevant evidence'" (Fleischman v Peacock Water Co., Inc., 51 AD3d 1203, 1205 [2008], quoting Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007] [citation omitted]). "The 'mere hope' that evidence sufficient to defeat the motion may be uncovered during the discovery process is not enough" (Mazzaferro v Barterama Corp., 218 AD2d 643, 644 [1995], quoting Jones v Gameray, 153 AD2d 550, 551 [1989]; see Clochessy v Gagnon, 58 AD3d at 1010).
Here, plaintiffs requested an extension to obtain testimony from three contractors that had worked on the house. However, plaintiffs fail to provide any specifics as to how these [*3]individuals could provide evidence material and relevant to defendants' alleged active concealment (see Zinter Handling, Inc. v Britton, 46 AD3d at 1001). Further, it is undisputed that plaintiffs provided defendants with a list of contractors who worked on the house prior to the 1999 closing; indeed, plaintiff admitted during his deposition that he spoke with at least two of these individuals regarding repairs to the house (see Flieschman v Peacock Water Co., Inc., 51 AD3d at 1205; Zinter Handling, Inc. v Britton, 46 AD3d at 1001). Under these circumstances, and given the fact that plaintiffs provide no reasonable excuse for delaying their request for additional discovery for over two years following depositions and, indeed, nearly six years after commencing this action, we find no abuse of discretion in Supreme Court's decision to deny plaintiffs' request (see Dalaba v City of Schenectady, 61 AD3d 1151, 1153 [2009]).
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