3212; Successive SJ; and stuff

CPLR R. 3212

CPLR R. 3211

11 Essex St. Corp. v Tower Ins. Co. of N.Y., 2011 NY Slip Op 01127 (App. Div., 1st 2011)

The court correctly denied DeSimone's motion for summary judgment on the grounds that it had denied a prior summary judgment motion by DeSimone and no new factual assertions and evidence were submitted or other sufficient cause shown for DeSimone's making the second motion (see Jones v 636 Holding Corp., 73 AD3d 409 [2010]; Forte v Weiner, 214 AD2d 397 [1995], lv dismissed 86 NY2d 885 [1995]).

Lau v 7th Precinct of the Police Dept. of the County of N.Y., 2011 NY Slip Op 01342 (App. Div., 1st 2011)

Although defendants stated in their notice of motion that they sought an order pursuant to CPLR 3212 granting summary judgment, in the supporting affirmation, they argued that the complaint failed to state a cause of action (CPLR 3211[a][7]), and the exhibits annexed to the affirmation consist solely of pleadings. Upon analyzing the pleadings, the motion court granted defendants' motion "for summary judgment . . . dismissing plaintiff's complaint for failure to state a cause of action."

Summary judgment was properly granted although the complaint could have been dismissed pursuant to CPLR 3211(a)(7). Also, plaintiff's argument that the court should have denied defendants summary judgment because the evidence raises issues of fact whether he had a special relationship with the police is unavailing. His General Municipal Law § 50-h hearing testimony is insufficient to establish the elements of such a relationship (see Luisa R. v City of New York, 253 AD2d 196, 203 [1999]; Artalyan, Inc. v Kitridge Realty Co., Inc., 52 AD3d 405, 407 [2008]). Among other things, the police advised plaintiff that they could not help him in this matter and that he would be arrested if he continued to call them. In the face of this evidence, plaintiff cannot establish reasonable reliance upon any purported promise of police protection.

Plaintiff's proposed amended complaint failed to remedy the factual deficiencies in his original complaint (Pacheco v Fifteen Twenty Seven Assoc., 275 AD2d 282, 284 [2000]; Schulte [*2]Roth & Zabel, LLP v Kassover, 28 AD3d 404 [2006]).

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