What’s New In 3212? It’s (f)

Sometimes in order to oppose a motion for summary judgment, you need information. You need discovery.That's where CPLR R. 3212(f) comes in.  It allows you to oppose the motion, by arguing that you cannot oppose without more information and, you can only get that information from the other party.  The absence of discovery will not always be sufficient.  There are many cases where the non-moving party needs no additional information to oppose the motion.  "But we're entitled to discovery," or similar arguments, will not suffice, absent a articulable need.  And be wary of invoking (f) where you, the non-moving party, filed a note of issue.  CPLR R. 3211 has a similar provision.  

On its face, this is simple stuff.  But as usual, the devil is in the details.  In the past few months I've seen a bunch of these decisions.  I might not have noticed it before.  It may just be the cool thing to do–in vogue at the moment.

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

Long Is. Power Auth. v Anderson, 2009 NY Slip Op 07989 (App. Div., 2nd, 2009)

Under the circumstances of this case, however, which include the total absence of any pretrial discovery, the plaintiff's motion for summary judgment was premature (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506; Hall Enters., Inc. v Liberty Mgt. & Constr., Ltd., 37 AD3d 658; see also Matter of Niagara Mohawk Power Corp. v Town of Watertown, 6 NY3d 744).

McCoy v Zaman, 2009 NY Slip Op 07990 (App. Div., 2nd, 2009)

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Nieves v JHH Transp., LLC, 40 AD3d 1060; Velazquez v Denton Limo, Inc., 7 AD3d 787, 788; Barberena v Budd Enters., 299 AD2d 305, 306).

In opposition to the prima facie demonstration by the plaintiff of his entitlement to judgment as a matter of law, the defendant failed to proffer sufficient evidence to raise a triable issue of fact (see Nieves v JHH Transp., LLC, 40 AD3d at 1060; Rainford v Sung S. Han, 18 AD3d 638, 639). The defendant's affidavit submitted in opposition to the motion raised only feigned issues of fact intended solely to avoid the consequences of his prior admission (see Nieves v JHH Transp., LLC, 40 AD3d at 1060).

Contrary to the defendant's contention, summary judgment was not premature due to the alleged incompleteness of discovery (see Rivas v 525 Bldg Co., 293 AD2d 733, 735). There was no indication that any outstanding discovery might reveal information exclusively within the plaintiff's knowledge upon which his motion could successfully be opposed (see Household Bank [SB] N.A. v Mitchell, 12 AD3d 568, 568-569; Rivas v 525 Bldg Co., 293 AD2d at 735).

Doe v City of New York, 2009 NY Slip Op 08580 (App. Div., 2nd, 2009)

Furthermore, the Supreme Court properly rejected the plaintiff's contention that facts essential to justify opposition to that branch of the MTA/LIRR's motion may exist upon further discovery (see CPLR 3212 [f]). Accordingly, the Supreme Court properly denied the plaintiff's cross motion to compel discovery. The plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence (see Panasuk v Viola Park Realty, LLC, 41 AD3d 804, 805; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615). Moreover, the plaintiff filed a note of issue, failed to demand additional discovery within 20 days of the depositions as provided in the parties' discovery stipulation, and did not make any application to compel discovery until she cross-moved in opposition to the MTA/LIRR's motion. In such an instance, a claim of incomplete [*3]discovery will not defeat a prima facie showing of entitlement to summary judgment (see Guarino v Mohawk Containers Co., 59 NY2d 753; Matuszak v B.R.K. Brands, Inc., 23 AD3d 628).

Menezes v Khan, 2009 NY Slip Op 07991 (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). The defendants did not address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Negassi v Royle, 65 AD3d 1311; Alvarez v Dematas, 65 AD3d 598; Rahman v Sarpaz, 62 AD3d 979, 980; Smith v Quicci, 62 AD3d 858, 859). The plaintiff alleged in his bill of particulars that he missed three months of work as a result of the accident, and the defendants' neurologist and orthopedist were both advised of this allegation. However, neither of these experts, who did not examine the plaintiff until more than three years after the accident, related his findings to the 90/180 day category of serious injury. The affirmed medical reports of the defendants' radiologist also failed to establish that the plaintiff did not sustain a serious injury as a result of the accident. Although the radiologist opined that the plaintiff had not suffered any traumatic injury to his cervical and lumbar spines, her reports did not address any of the other injuries alleged in the plaintiff's bill of particulars, including bilateral shoulder and knee injuries (see Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143; Rahman v Sarpaz, 62 AD3d at 980; Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814, 815; Carr v KMO Transp., Inc., 58 AD3d 783, 784-785; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769, 770). [*2]

Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Takaroff v A.M. USA, Inc., 63 AD3d at 1144; Rahman v Sarpaz, 62 AD3d at 980).

And, make sure to attach all the pleadings..

Fishkin v Feinstein, 2009 NY Slip Op 08782 (App. Div., 2nd, 2009)

The Supreme Court properly denied Feinstein's motion for summary judgment. As an initial matter, the plaintiff correctly contends that Feinstein was not entitled to summary judgment since the papers she submitted in support of her motion failed to include copies of all of the pleadings filed in the action, as required by CPLR 3212(b) (see Wider v Heller, 24 AD3d 433; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663; Deer Park Assoc. v Robbins Store, 243 AD2d 443; Lawlor v County of Nassau,166 AD2d 692).

The bold is mine.

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