Welcome to the CPLR R. 3212 roundup. Like the R. 3211 roundup, some of these decisions are a few months old because I've let them sit. And like the 3211 roundup, this one might be kind of long. Three are about timing, the rest are (f).
Shaibani v Soraya, 2010 NY Slip Op 02771 (App. Div., 2nd, 2010)
CPLR 3212(a) provides that "[a]ny party may move for summary judgment in any action, after issue has been joined." Joinder of issue requires the service of a complaint by the plaintiff and an answer or counterclaim by the defendant (see Chakir v Dime Sav. Bank of N.Y., 234 AD2d 577, 578; Woodworth v Woodworth, 135 AD2d 1143). Here, the plaintiff served the defendant with a summons with notice on or about January 15, 2008. There is no indication in the record that the plaintiff ever served the defendant with a complaint. Instead, the plaintiff moved, and the defendant cross-moved, for summary relief. Under these circumstances, the Supreme Court erred in considering the merits of the motion and cross motion, in effect, for summary judgment, since issue had not yet been joined as required by CPLR 3212 (see CPLR 3212[a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 727).
Hurley v Best Buy Stores, L.P., 2010 NY Slip Op 02424 (App. Div., 1st, 2010)
Defendants failed to demonstrate "good cause" for their belated summary judgment motion (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). The fact that they switched counsel before their prior counsel could take steps for relief from plaintiff's negligence claims does not constitute good cause, since prior counsel should have been aware of various defenses and should have requested such relief in a timely manner in their first summary judgment motion (see Breiding v Giladi, 15 AD3d 435 [2005]; see also Perini Corp. v City of[*2]New York, 16 AD3d 37 [2005]). In light of this decision, we need not consider whether triable issues of fact would have precluded summary relief.
Hill v Ackall, 2010 NY Slip Op 02098 (App. Div., 2nd, 2010)
The Supreme Court should have granted the motion of the defendant Afaf N. Ackall for summary judgment dismissing the complaint insofar asserted against her. Ackall made a prima facie showing of her entitlement to judgment as a matter of law by submitting her affidavit, in which she averred that her vehicle had been stopped at a red light behind the plaintiff's vehicle for approximately one minute, when a bus owned by the defendant Metropolitan Transit Authority Bus Company (hereinafter MTA Bus) struck the rear of her vehicle, causing her vehicle to strike the plaintiff's vehicle (see Staton v Ilic, 69 AD3d 606;Garner v Chevalier Transp. Corp., 58 AD3d 802; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736). MTA Bus opposed the motion on the grounds that Ackall did not establish her prima facie entitlement to judgment as a matter of law, and that the motion was premature. However, MTA Bus did not submit any evidence with respect to the merits in opposition to the motion and, thus, failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Contrary to the contention of MTA Bus, the motion was not premature (see CPLR 3212[f]; Staton v Ilic, 69 AD3d 606; Garner v Chevalier Transp. Corp., 58 AD3d at 802). MTA Bus failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff (see Kimyagarov v Nixon Taxi Corp., 45 AD3d at 737;Lopez v WS Distrib., Inc., 34 AD3d 759, 760).
Theresa Striano Revocable Trust v Paul J. Hoffman, 2010 NY Slip Op 02544 (App. Div., 2nd, 2010)
Contrary to the defendant's contention, the plaintiff's motion was not premature, as the defendant failed to offer an evidentiary basis to suggest that discovery might lead to relevant evidence and that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff and the third-party defendants (see Corwin v Heart Share Human Servs. of N.Y., 66 AD3d 814, 815; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736, 737). "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, 760).
Stanford v Dushey, 2010 NY Slip Op 02541 (App. Div., 2nd, 2010)
The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence that the defendant driver failed to yield the right-of-way as the plaintiff proceeded lawfully through the intersection (see Vehicle and Traffic Law § 1142[a]; Khan v Nelson, 68 AD3d 1062; Falcone v Ibarra, 67 AD3d 858, 859; Yelder v Walters, 64 AD3d 762, 763-764; Grossman v Spector, 48 AD3d 750, 751). In opposition, the defendants failed to raise a triable issue of fact. Since the defendant driver admitted in her affidavit that she did not see the plaintiff's vehicle prior to the collision, the defendants' contention that the plaintiff may have been speeding or may have been negligent in failing to take evasive action was speculative (see Loch v Garber, 69 AD3d 814; Khan v Nelson, 68 AD3d at 1062; Falcone v Ibarra, 67 AD3d at 859; Yelder v Walters, 64 AD3d at 764; Exime v Williams, 45 AD3d 633, 634). Furthermore, the defendants failed to establish that additional discovery would yield any facts indicating that the plaintiff was at fault and justify the denial of the plaintiff's motion (see CPLR 3212[f]; Falcone v Ibarra, 67 AD3d at 859; Carpio v Leahy Mech. Corp., 30 AD3d 554, 555; Szczotka v Adler, 291 AD2d 444). Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.
Town Hall Realties v Kelly, 70 AD3d 1032 (App. Div., 2nd, 2010)
Preliminarily, contrary to the plaintiff's contention, the Supreme Court properly considered the defendants' renewed motion for summary judgment. The renewed motion, although made after the 60-day deadline established by rule 13 of the Uniform Civil Term Rules for the Supreme Court, Kings County, was by leave of the court for good cause shown (see Tray-Wrap, Inc. v Pacific Tomato Growers, Ltd., 61 AD3d 545, 546 [2009]; Wider v Heller, 24 AD3d 433, 434 [2005]; cf. Brill v City of New York, 2 NY3d 648, 652 [2004]).
Jimenez v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 01763 (App. Div., 2nd, 2010)
A plaintiff may only commence a direct action against an insurer to recover on an unsatisfied judgment entered in a negligence action "at the expiration of thirty days from the serving of notice of entry of judgment upon the attorney for the insured, or upon the insured, and upon the insurer" (Insurance Law § 3420[a][2]), and this requirement is a condition precedent to the commencement of a direct action against the insurer (see Lang v Hanover Ins. Co., 3 NY3d 350, 352; Guayara v Hudson Ins. Co., 48 AD3d 628; Best v Progressive Cas. Ins. Co., 29 AD3d 503).
Although the plaintiff met her prima facie burden of establishing that she satisfied this condition precedent by submitting an affidavit of service attesting that a copy of the judgment in the underlying personal injury action (hereinafter the underlying judgment), with notice of entry, was mailed to NYCM on February 13, 2007 (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344), a hearing is required on the issue of service since NYCM rebutted the presumption of proper service. Specifically, NYCM submitted the affidavit of its claims manager denying that it received a copy of the underlying judgment prior to the commencement of the instant action (see Liriano v Eveready Ins. Co., 65 AD3d 524; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344).
Further, although NYCM was entitled to disclaim coverage because of the almost two-year delay in receiving notice of the commencement of the underlying negligence action against its insured (see Serravillo v Sterling Ins. Co., 261 AD2d 384; Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, 568, affd 4 NY2d 1028), a triable issue of fact exists as to the timeliness of the disclaimer (see Insurance Law § 3420[d]; Tex Dev. Co., LLC v Greenwich Ins. Co., 51 AD3d 775, 778; Matter of American Express Prop. Cas. Co. v Vinci, 18 AD3d 655, 656; Moore v Ewing, 9 AD3d 484, 488; see also First Fin. Ins. Co. v Jetco Contr. Corp.,1 NY3d 64, 68-69).
Furthermore, while an insurance carrier that knowingly chooses not to participate in an underlying action "may litigate only the validity of its disclaimer and cannot challenge the liability or damages determination underlying the judgment" (Lang v Hanover Ins. Co., 3 NY3d 350, 356 [emphasis added]; Insurance Law § 3420[a][2]), here, NYCM asserts it did not receive notice of the commencement of the underlying action until after the entry of judgment against its insured. Under these circumstances, NYCM is not collaterally estopped from litigating the merits of the underlying action, as it was not provided "a full and fair opportunity to contest the decision now said to be controlling" (Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199, quoting Buechel v Bain, 97 NY2d 295, 304, cert denied 535 US 1096). Although summary judgment in favor of the plaintiff should have been denied in light of the existence of the triable issues of fact described above, the award of summary judgment in the plaintiff's favor was premature in any event since NYCM is entitled to raise affirmative defenses, receive responses to its outstanding discovery requests, and conduct additional appropriate discovery relating to the extent of the plaintiff's injuries (see CPLR 3212[f];Kiernan v DaimlerChrysler Corp., 65 AD3d 614; Desena v City of New York, 65 AD3d 562).
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