theCPLRblog

3211

County of Suffolk v MHC Greenwood Vil., LLC, 2012 NY Slip Op 00174 (2nd Dept., 2012)

"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Sokol v Leader, 74 AD3d 1180, 1180-1181; see Guggenheimer v Ginzburg, 43 NY2d 268, 275). "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Sokol v Leader, 74 AD3d at 1181 [internal quotation marks omitted]; see Nonnon v City of New York, 9 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88). " Whether a plaintiff can ultimately establish its allegations is not part of the calculus'" (Sokol v Leader, 74 AD3d at 1181, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19). "A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)" (Sokol v Leader, 74 AD3d at 1181; see CPLR 3211[c]). "If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'" (Sokol v Leader, 74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275). "Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" (Sokol v Leader, 74 AD3d at 1182 [internal quotation marks omitted]; see Lawrence v Graubard Miller, 11 NY3d 588, 595; Rovello v Orofino Realty Co., 40 NY2d 633, 636). "Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it'" (Sokol v Leader, 74 AD3d at 1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275).

Here, the evidence submitted by the defendants did not demonstrate that any fact alleged in the complaint was undisputedly "not a fact at all" (see Guggenheimer v Ginzburg, 43 NY2d at 275; Sokol v Leader, 74 AD3d at 1182). Accordingly, the Supreme Court properly denied 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.

Makris v Darus-Salaam Masjid, N.Y., Inc., 2012 NY Slip Op 00340 (2nd Dept., 2012)

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Fishberger v Voss, 51 AD3d 627, 628). "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is [*2]barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" (Mendelovitz v Cohen, 37 AD3d 670, 670; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326).

Contrary to Tower's contention, the Supreme Court properly denied its motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). Tower failed to carry its burden of demonstrating that the faulty workmanship exclusion applies in this particular case, and that the exclusion is subject to no other reasonable interpretation than the one offered by it (see Cragg v Allstate Indem. Corp., 17 NY3d 118, 122; Insurance Co. of Greater N.Y. v Clermont Armory, LLC, 84 AD3d 1168, 1170; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100, 104-106). Consequently, Tower failed to utterly refute the plaintiffs' allegation that Tower wrongfully denied their claim or to establish that their allegation was "not a fact at all" (Guggenheimer v Ginzburg, 43 NY2d at 275; see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997).

Conniff v 32 Gramercy Park Owners Corp., 2012 NY Slip Op 00253 (1st Dept., 2012)

The dismissal should have been without prejudice because the court dismissed the complaint upon plaintiff's default in failing to oppose the motion to dismiss (see Hernandez v St. Barnabas Hosp., __ AD3d __, 2011 NY Slip Op 7722 [2011]; Aguilar v Jacoby, 34 AD3d 706, 708 [2006]). The Court did not address the merits of the motion.

Kaplan v Roberts, 2012 NY Slip Op 00492 (2nd Dept., 2012)

At the outset, although the Supreme Court did not give "adequate notice to the parties" that it would treat the defendant's motion as one for summary judgment (CPLR 3211[c]), where, as here, a specific request for summary judgment was made and the parties " deliberately chart[ed] a summary judgment course'" (Mihlovan v Grozavu, 72 NY2d 506, 508, quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320), the court was authorized to treat Equinox's motion as one for summary judgment (see Burnside 711, LLC v Nassau Regional Off-Track Betting Corp., 67 AD3d 718, 720).

Furthermore, the Supreme Court should have granted that branch of Equinox's motion which was pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing the fourth cause of action in the third-party complaint, which sought to recover damages for breach of contract. When the parties' intent to be bound by a contractual obligation "is determinable by written agreements, the question is one of law," which can be resolved by the court on a motion for summary judgment (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291; see ADCO Elec. Corp. v HRH Constr., LLC, 63 AD3d 653, 654; German Masonic Home Corp. v DeBuono, 295 AD2d 312, 313). "A question of fact arises as to the parties' intent to enter into an enforceable obligation [o]nly where the intent must be determined by disputed evidence or inferences outside the written words of the instrument"' (ADCO Elec. Corp. v HRH Constr., LLC, 63 AD3d at 654, quoting Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 291).

Here, even assuming that the "member policies" constituted binding contracts between Equinox and each of its individual members, Equinox established, prima facie, that the provision therein concerning use of the facility by children was clear and unambiguous, and did not create any obligation on the part of Equinox to ensure that Roberts would be protected against any and all dangers potentially posed by another member's failure to properly supervise his or her children (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 292; German Masonic Home Corp. v DeBuono, 295 AD2d at 313; Berghold v Kirschenbaum, 287 AD2d 673, 673). In opposition, Roberts failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Equinox's motion which was for summary judgment dismissing the fourth cause of action in the third-party complaint.

The Supreme Court also should have granted that branch of Equinox's motion which was pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing the fifth cause of action in the third-party complaint, which sought to recover damages for negligence. A property owner, or one in possession or control of property, "has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" (Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d 946, 947; see Millan v AMF Bowling Ctrs., Inc., 38 AD3d 860, 860-861). This duty arises when there is an ability and an opportunity to control such conduct, and an awareness of the need to do so (see Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt. Co., 2 AD3d 590, 591; Cutrone v Monarch Holding Corp., 299 AD2d 388, 389). In support of this branch of its motion, Equinox submitted evidence demonstrating, prima facie, that it did not have the ability and opportunity to control the conduct at issue through the exercise of reasonable measures, and that it had no awareness of the need to control the conduct of the child (see Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt. Co., 2 AD3d at 591; Lazar v TJX Cos., 1 AD3d 319, 319). In opposition, Roberts failed to raise a triable issue of fact (see Hillen v Queens [*3]Long Is. Med. Group, P.C., 57 AD3d at 947; Victor C. v Lazo, 30 AD3d 365, 367). Accordingly, the Supreme Court should have granted that branch of Equinox's motion which was for summary judgment dismissing the fifth cause of action in the third-party complaint.

Contrary to the Supreme Court's determination, there is no basis to believe that facts necessary to properly oppose the motion for summary judgment would be uncovered through disclosure (see Gabrielli Truck Sales v Reali, 258 AD2d 437, 438; Glassman v Catli, 111 AD2d 744, 745).

Henderson v Kingsbrook Jewish Med. Ctr., 2012 NY Slip Op 00334 (2nd Dept., 2012)

In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88; see Nonnon v City of New York, 9 NY3d 825, 827). In addition, the pleading is to be "afforded a liberal construction" (Sarva v Self Help Community Servs., Inc., 73 AD3d 1155, 1155).

Here, the complaint states a cause of action alleging a violation of the plaintiffs' right of sepulcher, since the facts stated therein allege that the defendant interfered with the plaintiffs' "absolute right to the immediate possession of a decedent's body for preservation and burial" (Melfi v Mount Sinai Hosp., 64 AD3d 26, 31). Although the delay in releasing the decedent's body was not inordinate and may ultimately be determined to have been reasonable and proper under all of the circumstances, "[w]hether [the] plaintiff can ultimately establish [his] allegations is not part of the calculus in determining a motion to dismiss [made pursuant to CPLR 3211(a)(7)]" (ECBI, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1111).

Fleyshman v Suckle & Schlesinger, PLLC, 2012 NY Slip Op 00176 (2nd Dept., 2012)

Moreover, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged a violation of Judiciary Law § 487. Even as amplified by the plaintiff's affidavit, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted "with intent to deceive the court or any party" (Judiciary Law § 487[1]; see Jaroslawicz v Cohen, 12 AD3d 160, 160-161). Further, the plaintiff's allegation that the defendants "willfully delayed [her] recovery with a view to their own ends and benefit" is a bare legal conclusion, "which is not entitled to the presumption of truth normally afforded to the allegations of a complaint" (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969; see Judiciary Law § 487[2]).

CPLR 3212 and its variations

Cabrera v New York City Dept. of Educ., 2012 NY Slip Op 00834 (1st Dept., 2012)

Defendant Department of Education (DOE) is not entitled to summary judgment because there is sufficient evidence in the record to raise a question of fact as to whether it knew of a recurring dangerous condition in the fence and routinely left it unaddressed (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107 [2003]) or whether it undertook repairs and performed them negligently (see e.g. Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226-227 [2002]).

TrizecHahn, Inc. v Timbil Chiller Maintenance Corp., 2012 NY Slip Op 00712 (1st Dept., 2012)

Moreover, although Timbil submitted, in reply, affidavits from two servicemen who said they performed an overspeed trip test on November 8, 2000, a movant may not "remedy a fundamental deficiency in the moving papers by submitting evidentiary material with the reply" (Ford v Weishaus, 86 AD3d 421, 422 [2011] [internal quotation marks and citation omitted]).

Sangare v Edwards, 2012 NY Slip Op 00290 (1st Dept., 2012)

Plaintiff commenced an action alleging assault and battery against Edwards, and negligence against Dermer, contending that Dermer knew or should have known of Edwards's violent tendencies. Dermer amended its answer to include a workers' compensation defense, asserting that as a special employee of Dermer, plaintiff's sole and exclusive remedy was workers' compensation. Dermer did not otherwise raise or pursue the workers' compensation issue during the course of the litigation.

Following discovery, by order to show cause, Dermer moved to refer the matter to the Workers' Compensation Board (WCB) for a determination as to whether plaintiff was the special employee of Dermer, and to stay the proceedings pending such determination. Plaintiff opposed the motion, arguing, inter alia, that the motion was untimely, and, in any event, that plaintiff was the employee of Soho, not Dermer.

The court denied the motion, noting that it was "not obligated in all cases to defer to the WCB's primary jurisdiction by referring employment issues to the WCB." The court declined to [*2]reach the merits of Dermer's status as a special employer, since the issue was not before it, and the time to make a summary judgment motion had expired. The court stated that it was unwilling to further delay this case "on the eve of trial" by referring the matter to the WCB so that Dermer could obtain what it had failed to timely seek before the court, namely, a summary determination of its fourth affirmative defense.

We agree that under the particular circumstances of this case, referral was not indicated, and now affirm. We note, as an initial matter, that the compensation issue was never litigated before the Board because plaintiff, while working a reduced schedule following the incident, continued to receive his full salary and benefits from Soho. Dermer, other than asserting the workers' compensation statute as an affirmative defense in its answer, failed to raise the issue during the entire course of the litigation, and indeed, only raised the issue on the eve of trial, when discovery was complete and the time for making summary judgment motions had expired. The court aptly noted that Dermer was attempting to obtain via this motion relief it could no longer obtain by motion for summary judgment. Dermer may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation (see Bastidas v Epic Realty, LLC, 58 AD3d 776 [2009]).

Calcano v Rodriguez, 2012 NY Slip Op 00110 (1st Dept., 2012)

In sum, the Court of Appeals held in Thoma that a motion for summary judgment as to liability by a negligence plaintiff who cannot eliminate an issue as to his or her own comparative fault should simply be denied. This holding is binding on us, and we, like the Second Department, should follow it. Accordingly, we reverse the order appealed from and deny plaintiff's motion for summary judgment as to liability.

Tzilianos v New York City Tr. Auth., 2012 NY Slip Op 00026 (1st Dept., 2012)

Contrary to defendant's argument, we did not hold in Glover v New York City Tr. Auth. (60 AD3d 587 [2009], lv denied 13 NY3d 706 [2009]), that defendant's compliance with its own internal six-inch gap standard established non-negligence as a matter of law. In that case, the issue was whether the plaintiff produced competent evidence of the size of the gap (Glover at 587-588). The determination of the Court, namely reversal and dismissal of the complaint, was based upon the speculative and insufficient evidence of the width of the gap presented by the [*2]plaintiff in an attempt to show that the gap exceeded the six-inch standard. The Court, however, did not hold that compliance with the six-inch gap policy established the NYCTA's non-negligence as a matter of law.

In any event, even if we assumed defendant's gap standard is reflective of an industry standard or a generally accepted safety practice, the fact that it complied with its own internal operating rule constitutes some evidence that it exercised due care, but is not conclusive on the issue of liability. A jury must be satisfied with the reasonableness of the common practice, as well as the reasonableness of the behavior that adhered to the practice (see Trimarco v Klein, 56 NY2d 98, 105-107 [1982]). Therefore, defendant's compliance with its own internal standard is not a sufficient basis, standing alone, upon which to grant summary judgment in its favor.

Ostrov v Rozbruch, 2012 NY Slip Op 00022 (1st Dept., 2012)

We start with an examination of the basic purpose of summary judgment.

Calling summary judgment "a valuable, practical tool for resolving cases that involve only questions of law," the Court of Appeals stated it was "a great benefit both to the parties and to the overburdened New York State trial courts" by allowing a party to show that there is no material issue of fact to be tried, "thereby avoiding needless litigation cost and delay" (Brill v City of New York, 2 NY3d 648, 651 [2004]). As the Court recognized in Brill, these benefits can only be realized when motions for summary judgment are timely brought. The Legislature agreed, and in a 1996 amendment to CPLR 3212(a), provided that such motions be brought within 120 days after the filing of the note of issue, except for good cause shown. The goal, of course, is to provide a thorough presentation of the evidence on both sides and an expeditious determination by the court as to whether there are any material issues of fact to be tried.

Since summary judgment is the equivalent of a trial, it has been a cornerstone of New York jurisprudence that the proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law [*4](Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this requirement is met, the burden then shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, the motion court specifically found that defendant met his burden of establishing that he was entitled to judgment as a matter of law, thus shifting the burden to plaintiff to properly establish the existence of a material issue of fact. The court recognized that plaintiff's initial opposition papers did not meet that burden because of the "limited" discussion regarding whether the surgery on plaintiff's left knee was contraindicated. Although recognizing that this claim was possibly being raised for the first time in opposition to defendant's motion, the court, apparently relying on some of our prior decisions permitting additional submissions under limited circumstances, opted to permit the parties to submit additional evidence on this issue. The resulting submissions went well beyond the limitations our prior decisions envisioned.

It appears that our holdings in Orsini v Postel (267 AD2d 18 [1999]), Ashton v D.O.C.S. Continuum Med. Group, (68 AD3d 613 [2009]) and Tierney v Girardi (86 AD3d 447 [2011]) may have created the erroneous impression that supplemental submissions could be routinely utilized in summary judgment motions without regard to the scope of such submissions or the time limitations imposed by the CPLR. While such supplemental submissions may be appropriate in particular cases, they should be sparingly used and then only for a limited purpose. A careful reading of these cases warrants this conclusion.

In Orsini, which was decided before Brill, we found that the court properly exercised its discretion in accepting a supplemental physician's affirmation submitted by the plaintiff without leave of court in response to the defendant's reply papers. There, the affirmation "was submitted well in advance of argument, the IAS court expressly offered defendant an opportunity to respond, and it does not otherwise appear that defendant was prejudiced by the IAS court's preference to decide this eve-of-trial motion on as full a record as plaintiff wished to make" (267 AD2d at 18). Significantly, Orsini presented the type of "eve-of-trial" motion that Brill expressly condemned.

In Ashton, the court directed the plaintiff's expert to submit a supplemental affirmation elaborating solely on his initial conclusions. The defendants were also given a final opportunity to respond. We held that "the court properly exercised its discretion in directing plaintiff to submit a supplemental expert affirmation stating the basis for the expert's opinion, where defendants were permitted to respond and were not otherwise prejudiced." (68 AD3d at 614). Of note is the fact that, unlike here, the supplemental affirmation in Ashton was from the same expert, not a different expert in a different medical discipline, and was limited to a discrete issue, i.e., clarification of the grounds for the plaintiff's expert's initial conclusion.

Tierney presented a different situation. There, the defendants demonstrated their entitlement to judgment dismissing the complaint as a matter of law, shifting the burden to the plaintiff. The court properly exercised its discretion in excusing plaintiff's procedural oversights, "including the untimely filing of her expert's affirmation, where there was no showing that plaintiff acted in bad faith or that the late filing prejudiced defendants, and where the court [*5]permitted defendants to respond to the supplementary affidavit" (86 AD3d at 448). Once again, Tierney was not a situation where the plaintiff's opposition papers were insufficient and the parties were permitted to submit additional papers.

The supplemental submissions in all three cases were limited in scope and temporal duration. Indeed, there is no indication that the supplemental submissions included material from additional experts in other medical disciplines or information not originally referenced in plaintiff's initial opposition papers.

The situation before us in this case is very different.

As noted, both parties submitted supplemental expert affirmations from experts in different medical disciplines. Moreover, these affirmations expanded the scope of plaintiff's theory of medical malpractice beyond what was encompassed in the complaint and bill of particulars. Indeed, plaintiff's theory, as originally set forth in the complaint, alleged, inter alia, that the surgery was improperly performed. Her bill of particulars and supplementary bill of particulars only made oblique references to the failure to discuss alternatives to surgery and then only in the bill of particulars in response to defendant hospital's demands, not those of defendant doctor. "A court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint" (Mezger v Wyndham Homes, Inc., 81 AD3d 795, 796 [2011]; see also Abalola v Flower Hosp., 44 AD3d 522 [2007]). Since the court found plaintiff's opposition papers insufficient save for this new theory of recovery, defendant's motion should have been granted.

The problems created by open-ended supplemental submissions are manifest. A procedure designed to expeditiously determine a case took over 17 months from the time of the original filing of defendant's motion for summary judgment to the final order of the court. What started out as a limited inquiry into the basis of plaintiff's expert's conclusion that the surgery in question was contraindicated took on a life of its own, with the parties submitting affirmations from additional experts in a variety of medical disciplines. The improper submission of the medical article during the second oral argument caught defendant unawares. Importantly, none of the experts referenced this article in arriving at their opinions. Nevertheless, the court, over defendant's objections, received this article and utilized it as part of the basis for finding that plaintiff had raised a material issue of fact warranting a trial.

As the Court of Appeals stated in a different context, "[O]ur court system is dependent on all parties engaged in litigation abiding by the rules of proper practice" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010], citing Brill v City of New York, 2 NY3d 648 [2007], supra). We have held that "motion practice in connection with summary judgment should be confined to the limits imposed by CPLR 2214(b)" (Henry v Peguero, 72 AD3d 600, 602 [2010], appeal dismissed 15 NY3d 820 [2010]). We do not mean to limit the necessary discretion inherent in a court's authority to direct supplemental affirmations, in appropriate circumstances, such as those presented in Ashton or Tierney. Supplemental affirmations however, should be sparingly used to clarify limited issues, and should not be utilized as a matter of course to correct deficiencies in a party's moving or answering papers. [*6]

Accordingly, the order of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 21, 2010, which, to the extent appealed from as limited by the briefs, held defendant doctor's motion for summary judgment in abeyance pending the submission of further specified papers, should be reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint. The appeal from the order, same court and Justice, entered on or about January 20, 2011, which, to the extent appealed from, denied so much of defendant's motion for summary judgment as sought dismissal of plaintiff's claim that the left knee replacement surgery was contraindicated, should be dismissed, without costs, as academic.

Brown v Kass, 2012 NY Slip Op 00742 (2nd Dept., 2012)

The defendant moved, in effect, for summary judgment dismissing the complaint in Action No. 1 and for summary judgment dismissing the complaints insofar as asserted against him in Action Nos. 2, 3, and 4. The Supreme Court denied the motion, concluding that "there exist profound questions of credibility relating primarily to the parties themselves, and also to their respective witnesses,'" which precluded an award of summary judgment.

"It is not the court's function on a motion for summary judgment to assess credibility" (Ferrante v American Lung Assn., 90 NY2d 623, 631). " On a motion for summary judgment the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine,'" and " [a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact'" (Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731, 732, quoting 6243 Jericho Realty Corp. v AutoZone, Inc., 27 AD3d 447, 449). Summary judgment is inappropriate where triable issues of fact or credibility are raised that require a trial (see Zuckerman v City of New York, 49 NY2d 557).

Crawford v Smithtown Cent. School Dist., 2012 NY Slip Op 00746 (2nd Dept., 2012)

In opposition, the plaintiff failed to raise a triable issue of fact. The Supreme Court properly declined to consider the plaintiff's new theory of liability raised for the first time in opposition to the motion in light of the plaintiff's protracted delay in presenting it (see Horn v Hires, 84 AD3d 1025; Medina v Sears, Roebuck & Co., 41 AD3d 798).

Balducci v Velasquez, 2012 NY Slip Op 00921 (2nd Dept., 2012)

The Supreme Court also properly denied the separate cross motions of the Behnambakhshes and Decanio. The medical report of Dr. George V. DiGiacinto, submitted by the Behnambakhshes, was unaffirmed and, thus, in inadmissible form (see Grasso v Angerami, 79 NY2d 813; Lively v Fernandez, 85 AD3d 981; Pierson v Edwards, 77 AD3d 642; Vasquez v John Doe #1, 73 AD3d 1033). Furthermore, the admissible evidence relied upon by the Behnambakhshes did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the second accident, and the evidence relied upon by Decanio similarly did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the third accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Olic v Pappas, 47 AD3d 780). Since the Behnambakhshes and Decanio failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

Buffolino v City of New York, 2012 NY Slip Op 00924 (2nd Dept., 2012)

The Supreme Court properly denied, as untimely, the summary judgment motion of the defendant Stephanie Cho, which was made returnable six days beyond the deadline fixed by the Supreme Court in a so-ordered stipulation dated November 30, 2010, as she failed to demonstrate good cause for the delay (see CPLR 2004, 3212[a]; Brill v City of New York, 2 NY3d 648, 652; Van Dyke v Skanska USA Civ. Northeast, Inc., 83 AD3d 1049).

Jeansimon v Lumsden, 2012 NY Slip Op 00931 (2nd Dept,. 2012)

"Speculation and surmise are insufficient to defeat [*2]a motion for summary judgment" (Skouras v New York City Tr. Auth., 48 AD3d 547, 548; see Cusack v Peter Luger, Inc., 77 AD3d 785, 786; Cohen v Schachter, 51 AD3d 847; Frazier v City of New York, 47 AD3d 757; Smelley v Ahmed, 3 AD3d at 560; Portanova v Dynasty Meat Corp., 297 AD2d 792).

Taylor Bldg. Mgt., Inc. v Priority Payment Sys., LLC, 2012 NY Slip Op 00503 (2nd Dept., 2012)

In opposition, Priority failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d at 562). Rather, Priority's sole contention, and the focus of its submissions in opposition, was that Taylor would not be permitted to retain the $1.5 million contained in the reserve account, because, due to the alleged fraud committed by Woogo with respect to Global, Global would be permitted to offset its damages with the $1.5 million reserve account fund. At no point did Priority attempt to dispute the material allegations of Taylor's complaint.

Whatever allegations Global has made in the Georgia action with regard to the relationship between Woogo and Taylor, those allegations are not relevant to the issue raised in this appeal before this Court. Moreover, until Taylor is found liable to Global and a judgment is entered in Global's favor, any claim by Global that it is entitled to retain the funds contained in the reserve account is speculative.

Accordingly, the Supreme Court erred in denying Taylor's motion as premature, as further discovery of the relationship between Global and Woogo is irrelevant to the resolution of the motion at bar, and Priority has not identified any facts essential to justify opposition to which Priority did not have access (see Pacheco v Halstead Communications, Ltd., 90 AD3d 877; Ordonez v Levy, 19 AD3d 385, 386). Therefore, Taylor's motion for summary judgment on the issue of Priority's liability must be granted.

 

CE waived and a late SJ

Ofman v Ginsberg, 2011 NY Slip Op 08334 (2nd Dept., 2011)

Although the defendant characterized his motion as one for in limine relief, he argued that the cause of action alleging legal malpractice could not be maintained because of collateral estoppel (see CPLR 3211[a][5]). Notably, he did not raise this objection or defense in either his answer or his original motion to dismiss the complaint (see CPLR 3211[e]). Accordingly, the defense based on the doctrine of collateral estoppel was waived (id.). Under the circumstances, we agree with the plaintiff that the defendant's trial motion was, in effect, an untimely motion for summary judgment (see West Broadway Funding Assoc. v Friedman, 74 AD3d 798, 798; Brewi-Bijoux v City of New York, 73 AD3d 1112, 1113; Matter of City of New York v Mobil Oil Corp., 12 AD3d 77, 80-81; Rivera v City of New York, 306 AD2d 456, 456-457; Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 811) based on a defense that was waived (see CPLR 3211[e]). "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" (Rondout Elec. v Dover Union Free School Dist., 304 AD2d at 810-811). Moreover, the Supreme Court improvidently exercised its discretion in considering this motion since the defendant failed to offer any excuse for the untimely submission of the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648). As the motion should have been denied, we reverse the judgment and reinstate the complaint (see Brewi-Bijoux v City of New York, 73 AD3d at 1113).

3212(a)

Luciano v H.R.H. Constr., LLC, 2011 NY Slip Op 08305 (1st Dept., 2011)

Supreme Court properly denied the motion as untimely. Absent other directive from the court, summary judgment motions should be made no later than 120 days "after the filing of the note of issue" (CPLR 3212[a] [emphasis added]). It is undisputed that the insurer did not move for summary judgment until two years after plaintiff filed the note of issue. Although the insurer was not served with the note of issue, it does not deny that it knew about its filing (cf. McFadden v 530 Fifth Ave. RPS III Assoc., LP, 28 AD3d 202, 202-203 [2006]). Accordingly, the motion court correctly required "a satisfactory explanation for the untimeliness" and properly determined that no such explanation was given (Brill v City of New York, 2 NY3d 648, 652 [2004]).

We reject the insurer's argument, raised for the first time on appeal, that it did not believe that the 120-day period had begun to run, because a note of issue had been filed only in the main action, not in the "severed" third third-party action. By order entered January 17, 2007, the court (Lucindo Suarez, J.) granted the insurer's motion to sever the third third-party claims only to the extent of severing the claims for trial on the condition that they were not "disposed of prior thereto." Accordingly, as the court explicitly stated in its order, the actions remained consolidated through discovery. Thus, plaintiff's filing of the note of issue started the running of the 120-day period, and the insurer's "failure to appreciate that its motion was due . . . is no more satisfactory than a perfunctory claim of law office failure" (Giudice v Green 292 Madison, LLC, 50 AD3d 506, 506 [2008][internal quotation marks omitted]).

Given the foregoing, we need not reach the merits of the motion.

Sumry Judments with a little RJ and JE, all in the 1st Department. One bit of EE in the 2nd.

CPLR R. 3212

Lance Intl., Inc. v First Natl. City Bank, 2011 NY Slip Op 05982 (1^st Dept., 2011) 

Contrary to defendant's contention, its defense is that plaintiff lacks capacity to sue, not that the court lacks subject matter jurisdiction (see Security Pac. Natl. Bank v Evans, 31 AD3d 278, 279-280 [2006], appeal dismissed 8 NY3d 837 [2007]). Contrary to plaintiff's contention, Civil Court did not raise the issue of lack of capacity sua sponte.

While a defense that a party lacks capacity to sue (see CPLR 3211[a][3]) is waived if not raised in a pre-answer motion or in a responsive pleading (see CPLR 3211[e]), plaintiff's lack of capacity did not arise until after joinder of issue, and therefore, defendant did not waive that defense (see George Strokes Elec. & Plumbing v Dye, 240 AD2d 919, 920 [1997]).

A defendant may move for summary judgment based on an unpleaded defense (see e.g. Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]). Plaintiff can hardly claim prejudice or surprise from defendant's assertion that it lacked capacity to sue. In 1995, it moved to substitute its president as the plaintiff, arguing that he was "the real party in interest by virtue of the dissolution of the corporation."

Defendant's underlying motion for summary judgment was timely (see CPLR 3212[a]). Plaintiff has supplied no proof in the record that Civil Court required defendant to file its summary judgment motion by July 21, 2008. Even if, arguendo, one judge of the Civil Court ordered defendant to file its motion by July 21, 2008, this order was superseded by the parties' October 16, 2008 stipulation, which set a briefing schedule for the motion and was so-ordered by another judge of the Civil Court.

Plaintiff's original note of issue, which was filed on October 19, 2007, "was, in effect, nullifed" (Negron v Helmsley Spear, Inc., 280 AD2d 305 [2001]) when the action was removed from the trial calendar. Therefore, the operative note of issue is the one filed on April 25, 2008 (see Williams v Peralta, 37 AD3d 712, 713 [2007]), and the motion was timely.

Montolio v Negev LLC, 2011 NY Slip Op 05985 (1^st Dept., 2011)

Furthermore, although Negev's answer is contained in the record, it is verified only by counsel. The motion also is supported only by counsel's affirmation; no submission was made by anyone with personal knowledge (Lopez v Crotona Ave. Assoc., LP, 39 AD3d 388, 390 [2007]).

 

RJ and JD

 

UBS Sec. LLC v Highland Capital Mgt., L.P., 2011 NY Slip Op 05979 (1^st Dept., 2011)

The parties appealed, presenting us with the question whether and to what extent the doctrine of res judicata applies to these circumstances. The doctrine dictates that, "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Inv. Corp. v Lopez, 46 NY2d 48l, 485 [1979]). It used to be the rule that, even if the two actions arose out of an identical course of dealing, the second was not barred by res judicata if "the requisite elements of proof and hence the evidence necessary to sustain recovery var[ied] materially" (Smith v Kirkpatrick, 305 NY 66, 72 [1953]). However, the Court of Appeals expressly rejected that method of analysis in O'Brien v City of Syracuse (54 NY2d 353 [1981]). There it held that "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (54 NY2d at 357). The Court further stated: 

"[w]hen alternative theories are available to recover what is essentially the same relief for harm arising out of the same or related facts such as would constitute a single factual grouping' (Restatement, Judgments 2d, § 61 [Tent Draft No. 5]), the circumstance that the theories involve materially different elements of proof will not justify presenting the claim by two different actions" (id. at 357-358).

Notably, regarding this point, the Court stated in a footnote that, insofar as Smith (305 NY at 66) "may be to the contrary, it is overruled" (id.). Whether facts are deemed to constitute a single factual grouping for res judicata purposes "depends on how the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether . . . their treatment as a unit conforms to the parties' expectations or business understanding or usage" (Smith v Russell Sage Coll., 54 NY2d 185, 192-193 [1981] [internal quotation marks and citations omitted]).

Here, to the extent the claims against Highland in the new complaint implicate events alleged to have taken place before the filing of the original complaint, res judicata applies. That is because UBS's claims against Highland in the original action and in this action all arise out of the restructured warehousing transaction. While the claim against Highland in the original action was based on Highland's alleged obligation to indemnify UBS for actions taken by the affiliated funds, and the claims against Highland in the second action arose out of Highland's alleged manipulation of those funds, they form a single factual grouping. Both are related to the same business deal and to the diminution in the value of the securities placed with UBS as a result of that deal. Thus, the claims form a convenient trial unit. Moreover, it can hardly be said that the claims in the two actions are so unrelated that reasonable business people, not to mention the parties themselves, would have expected them to be tried separately (see Smith, 54 NY2d at 192-193). Also, we note that, when seeking permission to amend the complaint, UBS itself asserted that "the new causes of action arise out of the same or related circumstances and events as UBS's pending claims."

Further, the Court of Appeals' holding in Xiao Yang Chen v Fischer (6 NY3d 94 [2005]) [*6]does not support UBS's position. Nor does it represent a shift in res judicata jurisprudence, as UBS argues. The circumstances of this case bear no resemblance to those in Xiao Yang Chen, which involved a woman who, in a previously filed separate action, was granted a divorce on the ground of cruel and inhuman treatment. In the divorce action, the plaintiff supported her cruel and inhuman treatment claim with an allegation that her husband had slapped her, causing injury. While the divorce action was pending, the plaintiff commenced a separate personal injury action seeking damages for the intentional infliction of emotional distress and injuries arising out of the alleged assault. In finding that res judicata did not bar the personal injury action, the Court of Appeals noted that the two actions sought different types of relief and did not constitute a convenient trial unit. The Court of Appeals also noted other significant distinctions, such as the facts that divorce actions are typically decided by a judge and that attorneys in personal injury actions may be compensated by a contingency fee, and the policy consideration of expediting divorce proceedings. None of those considerations applies here, where the action seeks money damages arising only in connection with a commercial transaction. 

While we have concluded that res judicata bars the claims in this action, we still must address UBS's assertion that it would be fundamentally unfair to apply res judicata under the circumstances of this case. UBS bases this argument primarily on the contention that it would have moved to amend the complaint in the original action while that action was still in existence (i.e., before this Court dismissed it), but for the necessity that it comply with the Commercial Part rules requiring that it first seek permission in a letter. However, this argument fails because, even had they made such a motion, the ultimate result would have been the same. As evidenced by the affidavit of its former employee, UBS was aware of the facts that support the claims in this action as long ago as November 2008. That was before UBS filed the original action.

Indeed, the evidence that the former employee admits had been gathered by UBS at that time supports all the claims asserted against Highland in this action. That UBS received additional evidence in the document production that Highland made shortly before UBS sought to amend its complaint is irrelevant. The proper inquiry for res judicata purposes is when UBS could have raised a cause of action, not when it had enough evidence to prove the claim at trial (see Castellano v City of New York, 251 AD2d 194, 195 [1998], lv denied 92 NY2d 817 [1998], cert denied 526 US 1131 [1999]). In this regard, we note that, based on what it admits it knew in November 2008, UBS could have pleaded its fraud claim with the requisite particularity at that time, since the facts available would have permitted a "reasonable inference of the alleged conduct" (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]). Because UBS could have asserted the instant claims in the original complaint or moved to amend well before that complaint was dismissed by this Court, we are not persuaded that the Rules of the Commercial Part affected the eventual result. Nevertheless, to the extent that the third and fourth causes of action, alleging breach of the covenant of good faith and fair dealing and fraudulent conveyance, respectively, rely on conduct alleged to have occurred after the commencement of the prior action, such claims should be allowed.

Nor do we share the motion court's concern that it is unfair to apply res judicata where Highland remains a party to the action by dint of its counterclaims. It would likewise be unjust to hold that a defendant that chooses to assert a counterclaim forfeits its right to assert the defense of res judicata with respect to the main claims. Indeed, to so hold would deal a blow to judicial economy since counterclaims are not compulsory in New York (67-25 Dartmouth St. Corp. v Syllman, 29 AD3d 888, 889 [2006]), and defendants would merely assert their own [*7]claims in separate actions to avoid the application of res judicata.

Kvest LLC v Cohen, 2011 NY Slip Op 05984 (1^st Dept., 2011)

Plaintiff is not barred by the doctrine of judicial estoppel from asserting that the disclaimer is valid because it did not prevail in the declaratory judgment action (see Rothstein & Hoffman Elec. Serv., Inc. v Gong Park Realty Corp., 37 AD3d 206, 207 [2007], lv denied 8 NY3d 812 [2007]; Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1998], lv dismissed 92 NY2d 962 [1998]). However, contrary to plaintiff's argument, the doctrine of collateral estoppel does not bind defendants to the declaratory judgment court's determination that defendants did not timely notify the carrier of the claim letter. Defendants were not parties to that action. The doctrine of collateral estoppel is binding only upon parties or their privies who have had a full and fair opportunity to litigate issues determined in prior proceedings (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-486 [1979]).

Defendants state in their affidavit that they mailed a copy of the claim letter to the carrier [*2]on May 6, 2004, two days after they received it from plaintiff. However, a notice of occurrence/claim form prepared by defendants on October 2, 2004 indicates that the claim had not previously been reported. This raises a triable issue of fact as to whether defendants timely notified the carrier of the claim letter. 

Contrary to defendants' assertion, the damages recoverable in this action can include plaintiff's reasonable attorneys' fees incurred in defending the carrier's declaratory judgment action in its effort to mitigate its damages (see Martini v Lafayette Studio Corp., 273 AD2d 112, 114 [2000]). On the other hand, the breach of fiduciary duty cause of action was properly dismissed as the facts establish that the parties had nothing more than a typical insurance broker-customer relationship (see e.g. Murphy v Kuhn, 90 NY2d 266, 270-271 [1997]).

Equitable estoppel

Giannetto v Knee, 82 AD3d 1043 (2^nd Dept. 2011)

The Supreme Court erred, however, in granting that branch of the defendants' motion which was for summary judgment dismissing the malpractice cause of action against Knee on the basis of the statute of limitations. Although the defendants established, prima facie, that the action was commenced well beyond the 2½-year statute of limitations applicable to claims alleging dental malpractice (see CPLR 214-a), the plaintiff raised a triable issue of fact as to whether Knee should be equitably estopped from raising the defense of the statute of limitations. "Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the defendant" (Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553 [2006]; see Simcuski v Saeli, 44 NY2d at 448-449). Whether equitable estoppel applies is generally a question of fact (see Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 755 [2005]), and a mere failure to disclose malpractice or diagnose a condition does not give rise to equitable estoppel (see Rizk v Cohen, 73 NY2d 98 [1989]; Simcuski v Saeli, 44 NY2d at 450; Reichenbaum v Cilmi, 64 AD3d 693, 695 [2009]; Bevinetto v Steven Plotnick, M.D., P.C., 51 AD3d 612, 614 [2008]; Dombroski v Samaritan Hosp., 47 AD3d 80 [2007]; Coopersmith v Gold, 172 AD2d 982, 983 [1991]). Here, the plaintiff's sworn allegations raised a triable issue of fact as to whether Knee concealed his malpractice by knowingly misrepresenting her condition and by bonding tooth number 21, a procedure that the plaintiff alleges he knew was not effective (see Vigliotti v North Shore Univ. Hosp., 24 AD3d at 755; Szajna v Rand, 131 AD2d 840, 841 [1987]). Additionally, the plaintiff raised a triable issue of fact as to whether she commenced the action within a reasonable time after her discovery of the alleged malpractice (see Edmonds v Getchonis, 150 AD2d 879, 882 [1989]).

 

CPLR 5513 5701 5526 3212b 5501

CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal

CPLR § 5701 Appeals to appellate division from supreme and county courts

CPLR R. 5526 Content and form of record on appeal

CPLR § 5501 Scope of review

CPLR R. 3212 Motion for summary judgment

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

We reject plaintiffs' contention that the appeal is untimely because defendant filed its notice of appeal 32 days after it was served electronically with notice of the entry of the order (see CPLR 5513[a]). A New York State Court Electronic Filing (NYSCEF) site confirmation shows the date on which the order with notice of entry was filed electronically and e-mail notifications were sent to counsel for the parties. However, the NYSCEF site's transmission of notification of the entry to e-mail service addresses "shall not constitute service of notice of entry by any party" (22 NYCRR 202.5b[h][3]). "A party shall serve notice of entry of an order . . . on another party by serving a copy of the notification . . . and an express statement that the transmittal constitutes notice of entry" (id.). The only affidavit of service in the record shows that the notice of entry was served on defendant by mail. Thus, defendant had 35 days to notice its appeal (see CPLR 2103[b][2]).

Gross v 141-30 84th Rd. Apt. Owners Corp., 2011 NY Slip Op 04746 (App. Div., 1st 2011)

Although Supreme Court's order was not appealable as of right because it did not decide a motion made on notice (see CPLR 5701[a][2]), in the interest of judicial economy, we nostra sponte deem the notice of appeal a motion for leave to appeal and grant the motion (see CPLR 5701[c]; Winn v Tvedt, 67 AD3d 569 [2009]).

Supreme Court erred in granting plaintiff's application, since plaintiff failed to show that defendants' noncompliance with the court's discovery orders was "willful, contumacious or due to bad faith" (Weissman v 20 E. 9th St. Corp., 48 AD3d 242, 243 [2008]; Dauria v City of New York, 127 AD2d 459, 460 [1987]). Indeed, the record shows that defendants provided plaintiff with the discovery owed pursuant to Supreme Court's most recent order. Prior to that order, most of the delays in the discovery schedule were due to plaintiff's actions. Where, as here, delays in discovery were caused by both parties' actions, the unilateral and drastic sanction of striking the pleadings is inappropriate (Daimlerchrysler Ins. Co. v Seck, 82 AD3d 581 [2011]; Sifonte v Carol Gardens Hous. Co., 70 AD2d 563, 564 [1979]).

Block 6222 Constr. Corp. v Sobhani, 2011 NY Slip Op 04614 (App. Div., 2nd 2011)

"It is the obligation of the appellant to assemble a proper record on appeal, which must contain all of the relevant papers that were before the Supreme Court" (Wen Zong Yu v Hua Fan, 65 AD3d 1335, 1335; see CPLR 5526; Cohen v Wallace & Minchenberg, 39 AD3d 689; Matter of Remy v Mitchell, 60 AD3d 860). Since, under the circumstances, the record here is inadequate to enable this Court to render an informed decision on the merits, the appeal must be dismissed (see Emco Tech Constr. Corp. v Pilavas, 68 AD3d 918, 918-919; Matter of Allstate Ins. Co. v Vargas, 288 AD2d 309, 310).

Cocom-Tambriz v Surita Demolition Contr., Inc., 2011 NY Slip Op 04622 (App. Div., 2nd 2011)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Harsch v City of New York, 78 AD3d 781, 784; Nassau Plaza Assoc., L.P. v Greater N.Y. Mut. Ins. Co., 74 AD3d 1159, 1160). Accordingly, upon searching the record, we award summary judgment to the defendants third-party plaintiffs on the issue of whether the plaintiff sustained a grave injury.

Williams v New York City Health & Hosps. Corp., 2011 NY Slip Op 04662 (App. Div., 2nd 2011)

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

Does CPLR R. 3212(f) work with CPLR R. 3123

CPLR R. 3212 Motion for summary judgment

CPLR § 3213 Motion for summary judgment in lieu of complaint

Citibank, N.A. v Silverman, 2011 NY Slip Op 04810 (App. Div., 1st 2011)

Assuming, arguendo, that CPLR 3212(f) applies to an action commenced under CPLR 3213, defendant's affidavit failed to show that "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]; see also Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 103 [2006], lv denied 8 NY3d 804 [2007]).

The motion court properly dismissed defendant's counterclaim alleging a violation of the Bank Holding Company Act (BHCA), (12 USC § 1972[1][C]). When a bank engages in traditional banking practices, it cannot be liable under the BHCA (see BC Recreational Indus. v First Natl. Bank of Boston, 639 F2d 828 [1st Cir 1980]). "The anti-tying provisions [of the BHCA] were not intended to interfere with or impede appropriate traditional banking activities through which banks safeguard the value of their investment" (In re Adelphia Communications Corp., 365 BR 24, 76 [SD NY 2007] citing Nordic Bank PLC v Trend Group Ltd., 619 F Supp 542, 554 [SD NY 1985]).

To demand additional collateral from a debtor who is in default in exchange for extending that debtor's letter of credit is well within traditional banking practices. Indeed, it is commonplace (see F.D.I.C. v Blankinship, 986 F2d 1427 [10th Cir. 1992] ["As a condition to renegotiating debts, banks can properly require additional collateral and impose other terms designed to ensure payment"] [citations omitted]). That the demand for additional collateral concerned the property of other family members does not take it out of the realm of traditional banking practices (see Sanders v First Natl. Bank & Trust Co., 936 F2d 273, 278 [6th Cir. 1987]).

Defendant's counterclaim for breach of the implied covenant of good faith and fair dealing fails because, as we have found, there was no oral forbearance agreement (see Societe Nationale D'Exploitation Industrielle Des Tabacs Et Allumettes v Salomon Bros. Intl., 251 AD2d 137 [1998], lv denied 95 NY2d 762 [2000]). Even if, arguendo, plaintiff orally agreed to forbear while the parties negotiated, we would still reject defendant's claim of bad faith on the part of plaintiff (see Massachusetts Mut. Life Ins. Co. v Gramercy Twins Assoc., 199 AD2d 214, 218 [1993]).Defendant's counterclaims for negligent misrepresentation and breach of fiduciary duty also fail. His conclusory allegations that his relationship with plaintiff was more than that of lender and borrower and that he relied on plaintiff's advice are insufficient to raise the inference that this bank-borrower relationship was special (see e.g. Korea First Bank of N.Y. v Noah Enters., Ltd., 12 AD3d 321, 323 [2004], lv denied 4 NY3d 710 [2005]). Even if, arguendo, there were a special relationship between the parties, defendant failed to raise the inference that he reasonably relied on incorrect information imparted by plaintiff (see J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007]; Global Mins., 35 AD3d at 99; P. Chimento Co. v Banco Popular de Puerto Rico, 208 AD2d 385, 385 [1994]).

Defendant also fails to make a prima facie case of age discrimination under the ECOA. Even if plaintiff raised defendant's age as an issue during negotiations, it subsequently offered him a term sheet and a loan modification agreement. As for defendant's claim of discrimination on the basis of marital status, essentially based on 12 CFR 202.7(d)(5), his own affidavit and his lawyer's affidavit show that plaintiff did not require his wife to furnish collateral. Rather, plaintiff gave defendant various options, one of which was to give plaintiff a lien against his cooperative apartment, that he co-owned with his wife.

Bond v DeMasco, 2011 NY Slip Op 04615 (App. Div., 2nd 2011)

Contrary to the plaintiffs' contention, the Supreme Court properly denied, as premature, their motion for summary judgment on the issue of liability (see CPLR 3212[f]; Lambert v Sklar, 61 AD3d 939, 940; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). The plaintiffs moved for summary judgment on the issue of liability prior to the parties' depositions. The defendants did not have an adequate opportunity to conduct discovery (see Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785). Moreover, the plaintiff Anne F. Bond and the defendant Rita J. DeMasco submitted, among other things, affidavits containing certain discrepancies pertaining to the circumstances of the subject accident (see Gardner v Cason, Inc., 82 AD3d 930; Cardone v Poidamani, 73 AD3d 828).

CPLR R. 3212 and such

CPLR R. 3212 Motion for summary judgment

Pleadings required

Fiber Consultants, Inc. v Fiber Optek Interconnect Corp., 2011 NY Slip Op 04412 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of the cross motion of the defendant Michael S. Pascazi which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him. "A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90-day period" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503). Here, Pascazi's 90-day demand was served prior to joinder of issue on the third amended complaint and, thus, was premature.

However, the Supreme Court erred in granting that branch of the plaintiff's motion which was for summary judgment on its eighth cause of action for an award of an attorney's fee insofar as asserted against Pascazi to the extent of finding that the plaintiff was entitled to attorney's fees pursuant to  Debtor and Creditor Law § 276-a and directing a hearing to determine the amount of such fees due the plaintiff. Denial of summary judgment was required since the plaintiff failed to include a copy of the pleadings in support of its motion, as required by CPLR 3212(b) (see Matter of Fraternal Order of Eagles v Board of Assessors, 73 AD3d 770, 771; Zellner v Tarnell, 54 AD3d 329, 329-330; Sendor v Chervin, 51 AD3d 1003; Thompson v Foreign Cars Ctr., Inc., 40 AD3d 965; Matsyuk v Konkalipos, 35 AD3d 675; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663). Under the circumstances of this case, the Supreme Court should have denied the motion without prejudice to renewal upon proper papers (see Wider v Heller, 24 AD3d 433, 434; Greene v Wood, 6 AD3d 976, 977; Welton v Drobnicki, 298 AD2d 757, 757).

Capasso v Capasso, 2011 NY Slip Op 04187 (App. Div., 2nd 2011)

The plaintiff's contention that summary judgment was granted prematurely under the facts of this case is without merit. The belief that additional discovery might reveal something helpful to her case does not provide a basis pursuant to CPLR 3212(f) for postponing a determination of summary judgment in this case (see Morissaint v Raemar Corp., 271 AD2d 586).

Horn v Hires, 2011 NY Slip Op 04205 (App. Div., 2nd 2011)

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff raised new theories of liability for the first time in opposition to the motion which should not have been considered in light of the plaintiff's protracted delay in presenting those new theories (see Gallello v MARJ Distribs., Inc., 50 AD3d 734, 736; Medina v Sears, Roebuck & Co., 41 AD3d 798, 799-800; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524). Accordingly, the Supreme Court should have granted the defendant's motion, in effect, for summary judgment dismissing the complaint.

James v Aircraft Serv. Intl. Group, 2011 NY Slip Op 04206 (App. DIv., 2nd 2011)

"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (Matter of Fasciglione, 73 AD3d 769, 770; see CPLR 3212[f]; Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793; see Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). Here, the appellant moved for summary judgment dismissing the complaint insofar as asserted against it prior to the exchange of any discovery. Under the circumstances of this case, the Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it without prejudice to renewal after the completion of discovery.

Personak Knowledge

Lopez v Stop & Shop Supermarket Co., LLC, 2011 NY Slip Op 04009 (App. DIv., 2nd 2011)

In this case, since the appellants failed to offer proof by a person with personal knowledge, they failed to establish prima facie that they were not aware of the hazardous condition complained of by the plaintiff, which was the wet packaging of the beer the plaintiff was carrying at the time of the alleged accident. Accordingly, the Supreme Court correctly denied their summary judgment motion without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

Teitelbaum v Crown Hgts. Assn. for the Betterment, 2011 NY Slip Op 04038 (App. Div., 2nd 2011)

The Supreme Court, however, should have denied, as untimely, that branch of the City's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it. The City failed to demonstrate good cause for its delay in making the cross motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652; Bickelman v Herrill Bowling Corp., 49 AD3d 578, 580). Contrary to the City's contention, the issues raised on its cross motion were not "nearly identical" to the issues raised on Crown Heights's motion (Ianello v O'Connor, 58 AD3d 684, 686; see Joyner-Pack v Sykes, 54 AD3d 727, 728; Grande v Peteroy, 39 AD3d 590, 592; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 496-497).

Jones v Pinnacle Dunbar Manor, LLC, 2011 NY Slip Op 04091 (App. Div., 1st 2011)

Defendant's motion for summary judgment was properly denied as untimely (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]). Defendant's excuse that it failed to timely file its motion due to the misplacement of a necessary affidavit does not demonstrate "good cause" within the meaning of CPLR 3212(a) (see Perini Corp. v City of New York [Department of Envtl. Protection], 16 AD3d 37, 40 [2005]). Even if we were to excuse defendant's tardiness, we would still be constrained to deny the motion, due to the presence of numerous issues of fact precluding summary judgment.

 Prove a negative?

Suits v Wyckoff Hgts. Med. Ctr., 2011 NY Slip Op 03894 (App. DIv., 1st 2011)

Wyckoff Heights, however, failed to make a prima facie showing that neither it nor its employees committed independent acts of negligence (see Fiorentino v Wenger, 19 NY2d 407, 414 [1967] ["[w]here a hospital's alleged misconduct involves an omission to act, the hospital will not be held responsible unless it had reason to know that it should have acted within the duty it concededly had"]). Indeed, in its motion for partial summary judgment, Wyckoff Heights merely attached the pleadings and bill of particulars. Significantly, Abakporo's deposition testimony was not included ^[FN1]. Thus, Wyckoff Heights failed to establish its prima facie entitlement to summary judgment, and accordingly the burden never shifted to plaintiff to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

That plaintiffs' bill of particulars stated that plaintiffs believed that the injuries were caused by Dr. Abakporo's negligence is of no moment inasmuch as the underlying pleadings must be liberally construed (CPLR 3026). In any event, plaintiffs' action is not limited to the wording in the bill of particulars cited by the majority, especially when plaintiffs also stated that their claim was against Wyckoff Heights' employees and agents (see Toth v Bloshinsky, 39 AD3d at 849 [holding that all that was required of the plaintiff in serving a bill of particulars was to "provide a general statement of the acts or omissions constituting the alleged negligence"]). In short, the specific wording of the bill of particulars cited by the majority did not relieve Wyckoff Heights of its obligation to establish its prima facie entitlement to summary judgment with proof in admissible form.

Cross motions and SJ

CPLR R. 2215 Relief Demanded by other than moving party

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Daramboukas v Samlidis, 2011 NY Slip Op 03796 (App. Div., 2nd 2011)

Furthermore, the Supreme Court erred in denying Osdoby's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her on the ground that it was incorrectly labeled a cross motion. Although "[a] cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party" (Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844; see CPLR 2215; Kleeberg v City of New York, 305 AD2d 549, 550), a technical defect of this nature may be disregarded where, as here, there is no prejudice, and the opposing parties had ample opportunity to be heard on the merits of the relief sought (see CPLR 2001; Sheehan v Marshall, 9 AD3d 403, 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d 282, 283). While the Supreme Court also denied Osdoby's motion on the ground that it was not supported by pleadings and other available proof, Osdoby incorporated by reference the pleadings and exhibits submitted by Albert in support of his original motion, and those pleadings and exhibits were therefore properly before the court (see Carlson v Town of Mina, 31 AD3d 1176, 1177; Welch v Hauck, 18 AD3d 1096, 1098; Mahone v Washington, 17 AD3d 1059). On the merits, Osdoby made a prima facie showing, through her deposition testimony, that she could not be held liable for the plaintiffs' injuries. That testimony demonstrated that she was driving in a nonnegligent manner when her vehicle was struck in the rear by the white van driven by Manginaro, and that her vehicle did not come into contact with any of the vehicles involved in the second collision about 20 car lengths east of the location where she was struck (see Vehicle and Traffic Law § 1129[a]; Savarese v Cerrachio, 79 AD3d 725). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

The Supreme Court similarly erred in denying the Tam defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that it was incorrectly labeled a cross motion (see CPLR 2001; Sheehan v Marshall, 9 AD3d at 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d at 283). On the merits, the Tam defendants made a prima facie showing that Daniel Tam was lawfully stopped at a red light when his vehicle was struck in the rear, and that he had a nonnegligent explanation for coming into contact with other vehicles at the scene after his vehicle was struck in the rear (see Savarese v Cerrachio, 79 AD3d 725; Franco v Breceus, 70 AD3d at 769; Ortiz v Haidar, 68 AD3d 953; Malak v Wynder, 56 AD3d at 623; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d at 877). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

Fine v One Bryant Park, LLC, 2011 NY Slip Op 03659 (App. Div., 1st 2011)

It is undisputed that defendants failed to file the motion within the time period set by the assigned IAS judge. The motion court concluded that defendants failed to establish good cause for the delay in making the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). A motion court's exercise of its broad discretion in determining whether the moving party has established good cause for delay will not be overturned unless it was improvident (see Daley v M/S Capital NY LLC, 44 AD3d 313, 315 [2007]; Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108 [2006]). Inasmuch as the record establishes that defendants could have easily determined which judge was assigned to the matter (see Giudice v Green 292 Madison, LLC, 50 AD3d 506 [2008]), the court's exercise of its discretion was not improvident.

Homeland Ins. Co. of N.Y. v National Grange Mut. Ins. Co., 2011 NY Slip Op 03805 (App. Div., 2nd 2011)

The Supreme Court improvidently exercised its discretion in denying, as untimely, National Grange's cross motion for summary judgment. While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was untimely (see Brill v City of New York, 2 NY3d 648), "an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds" (Grande v Peteroy, 39 AD3d 590, 591-592; see Whitehead v City of New York, 79 AD3d 858, 860; Lennard v Khan, 69 AD3d 812, 814; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497). In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the merits of the untimely cross motion (see Grande v Peteroy, 39 AD3d at 592). Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party (see CPLR 3212[b]).

Lyebyedyev v Hoffman, 2011 NY Slip Op 03813 (App. Div., 2nd 2011)

Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, the defendant was required to make his motion for summary judgment no later than 60 days after the filing of the note of issue, unless he obtained leave of the court on good cause shown (see Kings County Supreme Court Uniform Civil Term Rules, Part C[6], formerly Rule 13). Here, the defendant moved for summary judgment approximately 90 days after the note of issue was filed. Since the vague and conclusory assertions made by the defendant's attorney regarding the pendency of a motion to strike the note of issue and a delay in the defendant's signing and notarizing of his own deposition transcript were insufficient to constitute good cause, the Supreme Court erred in entertaining the summary judgment motion (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648; Cohen-Putnam Agency, Ltd. v Hudson Bldg. Maintenance, Inc., 55 AD3d 653; State Farm Fire & Casualty v Parking Sys. Valet Serv., 48 AD3d 550; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Pierre v Feldman, 41 AD3d 454, 455).

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SJ must be viewed in light favorable to the non-moving party

Someone was looking for a case that said this, or something like it, the other day.

CPLR R. 3212

Kutkiewicz v Horton, 2011 NY Slip Op 03215 (App. Div., 2nd 2011)

When viewed in the light most favorable to the nonmoving parties, here the plaintiffs (see Stukas v Streiter,AD3d, 2011 NY Slip Op 01832 [2d Dept 2011]), the evidence Horton submitted in support of the motion established prima facie that the sole proximate cause of the accident was Kutkiewicz's failure to yield the right of way to Horton's vehicle (see Yelder v Walters, 64 AD3d 762, 763-764; Vainer v DiSalvo, 79 AD3d 1023, 1024). In opposition, the plaintiffs failed to demonstrate a triable issue of fact as to whether Horton was at fault in the happening of the accident (see Yelder v Walters, 64 AD3d at 764; Vainer v DiSalvo, 79 AD3d at 1024). Consequently, the Supreme Court properly granted Horton's motion for summary judgment dismissing the complaint.