CPLR R. 3212; Watch your Stip (2nd to last decision)

CPLR R. 3212 Motion for summary judgment
(f) Facts unavailable to opposing party

Baines v G&D Ventures, Inc., 2009 NY Slip Op 05735 (App. Div., 2nd, 2009)

A defendant may be held liable for a slip-and-fall incident
involving snow and ice on its property upon a showing that, among other
things, the defendant had actual or constructive notice of the
allegedly dangerous condition (see Taylor v Rochdale Vil., Inc., 60 AD3d 930; Raju v Cortlandt Town Ctr., 38 AD3d 874).
Thus, "[o]n a motion for summary judgment to dismiss the complaint
based upon lack of notice, the defendant is required to make a prima
facie showing affirmatively establishing the absence of notice as a
matter of law" (Goldman v Waldbaum, Inc., 248 [*2]AD2d 436, 437). This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case, as the defendant did here (see Totten v Cumberland Farms, Inc., 57 AD3d 653; South v K-Mart Corp., 24 AD3d 748).
In support of its motion, the defendant submitted the deposition
testimony of its president, who allegedly inspected the premises on an
"almost" daily basis. However, the defendant's president failed to
provide any testimony as to when he last inspected the subject sidewalk
prior to the accident or what it looked like when he last inspected it.
Further, the mere fact that the icy condition which allegedly caused
the plaintiff to fall was open and obvious does not preclude a finding
of liability, but rather raises an issue of fact regarding comparative
negligence (see Sewitch v Lafrese, 41 AD3d 695; Ettari v 30 Rampasture Owners, Inc., 15 AD3d 611).

Accordingly, the defendant failed to meet its initial burden as
the movant, and the Supreme Court should have denied its motion for
summary judgment dismissing the complaint insofar as asserted against
it. Since the defendant did not meet its initial burden, we need not
review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Financial Freedom Senior Funding Corp. v Rose, 2009 NY Slip Op 05745 (App. Div., 2nd, 2009)

There was no need to join the estate of the now-deceased mortgagor,
the father of the respondents Steven Rose and Debra Rosenberg, as it
appears that he died intestate and the complaint does not seek a
deficiency judgment (see Countrywide Home Loans, Inc. v Keys, 27 AD3d 247; Winter v Kram, 3 AD2d 175).

However, the Supreme Court properly denied summary judgment to
the plaintiff, although the motion should have been denied without
prejudice to renewal upon completion of discovery. The respondents
alleged that the now-deceased mortgagor was incompetent when he
executed the subject loan, and that the plaintiff knew or should have
known of the incompetence, which, if both facts are proven, would
constitute a basis to void this transaction (see Ortelere v Teachers' Retirement Bd., 25 NY2d 196; Matter of Loretta I., 34 AD3d 480; see generally Peterson v Spartan Ind., 33 NY2d 463, 465-466; Matter of People v Jaguar Sales, LLC, 61 AD3d 872; Benfeld v Fleming Props, LLC, 38 AD3d 814; Ying Jun Chen v Lei Shi, 19 AD3d 407).
Since the respondent Steven Rose set out a sufficient basis for his
inability to include medical evidence as to the decedent's mental
capacity in his opposition papers, further discovery was warranted.

Woods v 126 Riverside Dr. Corp., 2009 NY Slip Op 05634 (App. Div., 1st, 2009)

Corchado v City of New York, 2009 NY Slip Op 05642 (App. Div., 1st, 2009)

The parties' so-ordered stipulation clearly provided that summary
judgment motions were "to be filed" within 60 days of the filing of the
note of issue. Since the note of issue was filed on October 24, 2007,
summary judgment motions were to be filed by December 23, 2007. While
Hallen served its motion on December 21, 2007, it did not file the
motion until January 4, 2008. Plaintiff's opposition asserted the
untimeliness of Hallen's motion, to which Hallen replied that its
motion was timely because served within 90 days of the filing of the
note of issue. We reject Hallen's argument that CPLR 3212(a) authorizes
a court to set a deadline only for the making, i.e., service, not the
filing, of summary judgment motions (see e.g. Corbi v Avenue Woodward Corp.,
260 AD2d 255, 255 [1999]) because the parties, with the court's
consent, were free to chart a procedural course that deviated from the
path established by the CPLR (see Katz v Robinson Silverman Pearce Aronsohn & Berman LLP,
277 AD2d 70, 73 [2000] ["Parties are afforded great latitude in
charting their procedural course through the courts, by stipulation or
otherwise"] [internal citations omitted]). Thus, we affirm the denial
of Hallen's motion as untimely since Hallen offered no excuse for the
late filing (see Brill v City of New York, 2 NY3d 648, 652 [2004]), and we decline to consider Hallen's contention that good cause exists to [*2]consider
the motion because the parties misread the so-ordered stipulation and
believed that the 60-day deadline applied to the serving, not the
filing, of summary judgment motions. That contention was raised
improperly for the first time on appeal. In view of the foregoing, we
decline to reach the merits of Hallen's motion.

Not something you see very often. 

Braudy v Best Buy Co., Inc., 2009 NY Slip Op 05499 (App. Div., 2nd, 2009)

"To meet its initial burden on the issue of lack of constructive
notice, the defendant must offer some evidence as to when the area in
question was last cleaned or inspected relative to the time when the
plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598,
598-599). Since the defendant failed to do so here, the Supreme Court
correctly denied the defendant's motion without regard to the
sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

The bold is mine.