Intergalactic Bugs and CPLR R. 3212 and CPLR R. 2221. Happy 4th of July.

Normally, I don’t write anything
special for the 4th of July. 
I’m going to continue that tradition.  I will, however, be doing my civic and patriotic duty:
watching Starship Troopers.  The
number one threat facing the country today is intergalactic bugs.  I, for one, will be prepared.

In the past few days, decisions
have come out from every court but the Appellate Term, Second Department.  Creating a decision that allows an
expert to base her testimony on hypotheticals alone[1]
probably took a lot out of them, so they get a pass for their inactivity.

Today's post will cover the recent
3212 decisions.  I was going to put all of the recent decisions in one
post, but decided that it would take up too much time and space.  And,
nobody would read anything that long.

The last decision also discusses relaxing CPLR R.
's evidence available at the time the original motion was made, requirement, in the interest of justice.  CPLR R.  2221(e) provides:

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

I'm testing out writing my posts in word, so bear with me while I try to figure out the formatting.  From the looks of it, this will be a short lived experiment.

CPLR R. 3212 Summary Judgment

Estate of Marie Merna v Simuro, 2010 NY Slip Op 05725 (App. Div., 2nd,

As the proponent of the motion for
summary judgment, the bank was required to make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case
(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Matin v Chase
Manhattan Bank
, 10 AD3d 447
, 448). The bank failed to meet
this burden, as the evidence it submitted was insufficient to eliminate any triable
issues of fact as to whether the relevant account statements were "made
available" to the plaintiff before January 5, 2005, the date on which she
discovered the forgeries (UCC 4-406[4]; see
Matin v Chase Manhattan Bank
, 10 AD3d at 448-449; Robinson Motor Xpress,
Inc. v HSBC Bank, USA
, 37 AD3d 117


However, the Supreme Court
improperly denied that branch of the bank's motion which was to strike the
plaintiff's demand for a jury trial[2]
(see generally Brian Wallach Agency v
Bank of N.Y.
, 75 AD2d 878; Massry
Importing Co. v Security Natl. Bank
, 49 AD2d 750; David v Manufacturers Hanover Trust Co., 59 Misc 2d 248).

Espada v City of New York, 2010 NY Slip Op 05724 (App. Div., 2nd,

Contrary to the plaintiff's
contention, the defendants' motion was not premature, as the plaintiff 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 defendants' knowledge and control
CPLR 3212[f]; Hill v Ackall, 71
AD3d 829
; Kimyagarov v Nixon
Taxi Corp.,
45 AD3d 736
, 737).

Evangelista v Kambanis, 2010 NY Slip Op 05726 (App. Div., 2nd,

"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
(Matter of Fasciglione,
73 AD3d 769, 769; see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926).
Here, at the time the defendant landowners moved for summary judgment, they had
not been deposed. Moreover, it appears that information concerning whether they
created the alleged dangerous condition on the sidewalk abutting their property
which caused the plaintiff's accident, or enjoyed a special use of the sidewalk
which gave rise to the dangerous condition, may be within their exclusive
knowledge (see Adler v City of New York,
52 AD3d 549, 549-550). Under these circumstances, the Supreme Court did not
improvidently exercise its discretion in denying, as premature, the defendants'
motion for summary judgment dismissing the complaint (see Matter of Fasciglione, 73 AD3d at 769; Gruenfeld v City of New Rochelle, 72 AD3d 1025; Rodriguez v DeStefano, 72 AD3d at 926; Harvey v Nealis, 61 AD3d 935, 936).

Atiencia v Mbbco Ii, LLC, 2010 NY Slip Op 05872 (App. Div., 1st,

A court, in the course of deciding
a motion, is empowered to search the record and award summary judgment to a
nonmoving party (see CPLR 3212(b)
; Lennard v Khan, 69
AD3d 812
, 814 [2010]). However, with respect to the June 2009
order, the motion court erred in dismissing the Labor Law § 241(6) claim
against Farrell, as that claim was not placed before the court on plaintiffs'
summary judgment motion (see Dunham v
Hilco Constr. Co.
, 89 NY2d 425, 429-430 [1996]).

Regarding the October 2009 order,
the motion court should have granted the motions to renew. Although the newly
submitted evidence was available at the time of the prior motion, the court
"ha[d] discretion to relax this requirement and to grant such a motion in
the interest of justice" (Mejia v
, 307 AD2d 870, 871 [2003]). Not only did plaintiffs and MBBCO offer
reasonable justification for failing to submit the evidence submitted on the motion,
but the new facts submitted do, in fact, change the prior determination (CPLR

[1] I'm referring to Urban
Radiology, P.C. v Tri-State Consumer Ins. Co.
, 2010 NY Slip Op 50987(U)
(App. Term, 2nd, 11th & 13th Jud. Dists. 2010).  I have a long
about it over at the No-Fault blog.  Here is a snippet of the


was not attempting to prove that Rafailova was injured as documented in her
medical records, or that she was treated as set forth in those records.
Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records
were true
, the treatment allegedly provided was not medically necessary.
Therefore, as defendant was not using the underlying medical records for their
truth, such records were not being
used for a hearsay purpose 
(see e.g. Dawson v Raimon Realty Corp., 303
AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is
distinguishable from a situation in which a medical expert relies upon medical
records to establish the fact of an injury (see e.g. Hambsch v New York City
Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).
Consequently, plaintiff’s argument that defendant failed to establish the
reliability of the underlying medical records in support of its claim that the
treatment provided was not medically necessary is irrelevant. 
(Emphasis Added)


[2] This
footnote is mine. In the cases the Appellate Division cites, there was a prior agreement/contract waiving the right to a jury.  Compare,
just for fun, Haber v Cohen, 2010 NY Slip Op 05730 (App. Div., 2nd, 2010)(“Contrary
to the defendants' contention, the amendment of their counterclaims to withdraw
their requests for equitable relief did not revive their right to a trial by
jury”)(Citations omitted).

One thought on “Intergalactic Bugs and CPLR R. 3212 and CPLR R. 2221. Happy 4th of July.”

  1. I got into an argument with a judge yesterday on the issue of whether a change in law requires a motion to renew or reargue. Eventually, I assumed that a judge must know what he or she is talking about and conceded that a reargue motion might be correct.


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