Just a little 3212, including (f).

Gardner v Cason, Inc., 2011 NY Slip Op 01971 (App. Div., 2nd 2011)

It was premature to award summary judgment at this stage of the case. "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793). The plaintiff and the defendant Grumbly submitted, among other things, affidavits containing discrepancies pertaining to the circumstances of the accident, including as to the decedent's culpability. Furthermore, no depositions have been conducted, including any depositions of key eyewitnesses identified in the police accident report. Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability with leave to renew after the completion of discovery (see Gruenfeld v City of New Rochelle, 72 AD3d 1025; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Martinez v Ashley Apts. Co., LLC, 44 AD3d 830; Tyme v City of New York, 22 AD3d 571; see generally CPLR 3212[f]).

Carden v City of New York, 2011 NY Slip Op 01787 (App. Div., 2nd 2011)

In support of their motion for summary judgment, the defendants Hallen Construction Co., Inc. (hereinafter Hallen), and Keyspan Energy Delivery N.Y.C. (hereinafter Keyspan) submitted evidence sufficient to establish, prima facie, that they did not create the alleged defect in the roadway which caused the plaintiff driver to sustain injuries (see Courtright v Orange and Rockland Utils., Inc., 76 AD3d 501; Garcia v City of New York, 53 AD3d 644; Rubina v City of New York, 51 AD3d 761). In opposition, the plaintiffs submitted evidence sufficient to raise triable issues of fact as to the exact situs of the defect and whether Hallen and Kesypan created the alleged defect. Generally, an opposing party must make a showing of evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557). "Under certain circumstances [o]ur courts have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment'" (Guzman v Strab Constr. Corp., 228 AD2d 645, 646 quoting Zuilkowski v Sentry Ins., 114 AD2d 453, 454; see Phillips v Kantor & Co., 31 NY2d 307). Here, the accident report from the New York City Sanitation Department, which was produced during discovery and had sufficient indicia of reliability, raised a triable issue of fact as to whether the alleged defect was located within the area where Keyspan and Hallen performed their work (see Asare v Ramirez, 5 AD3d 193; Guzman v Strab Constr. Corp., 228 AD2d 645).

Heath v Liberato, 2011 NY Slip Op 01803 (App. Div., 2nd 2011)

In opposition, the defendant failed to raise a triable issue of fact. The defendant's opposition merely raised "feigned" issues of fact, which are insufficient to defeat a motion for summary judgment (Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 257; see Miller v City of New York, 214 AD2d 657; Garvin v Rosenberg, 204 AD2d 388). The defendant also failed to demonstrate that further discovery was warranted (see Benedikt v Certified Lbr. Corp., 60 AD3d 798; Lopez v WS Distrib., Inc., 34 AD3d 759).

Anastasio v Berry Complex, LLC, 2011 NY Slip Op 01778 (App. Div., 2nd 2011)

None of the defendants submitted evidence sufficient to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Contrary to York's contention, a triable issue of fact exists as to whether it launched an instrument of harm by allegedly negligently erecting the sidewalk shed (see Manicone v City of New York, 75 AD3d 535; Ragone v Spring Scaffolding, Inc., 46 AD3d 652; Phillips v Seril, 209 AD2d 496). With respect to Design Built, triable issues of fact exist as to whether it exercised control over the construction site, as the general contractor, and whether it created or had actual or constructive notice of the alleged hazardous conditions (see Mancone v City of New York, 75 AD3d 535). Berry failed to establish, prima facie, that it lacked constructive notice of the alleged ice condition on the sidewalk abutting its property (see Martinez v Khaimov, 74 AD3d 1031; see generally Administrative Code of the City of New York 7-210). Since none of the parties satisfied their prima facie burden as the movants, we need not review the sufficiency of the plaintiff's opposition papers (see Totten v Cumberland Farms, Inc., 57 AD3d 653; Joachim v 1824 Church Ave., Inc., 12 AD3d 409).

AGFA Photo USA Corp. v Chromazone, Inc., 2011 NY Slip Op 01517 (App. Div., 1st 2011)

Defendants' argument that plaintiff's second motion for summary judgment should have been treated as a motion to renew, is improperly raised for the first time on appeal (see Callisto Pharm., Inc. v Picker, 74 AD3d 545 [2010]). Were we to review this argument, we would find that the court's treatment of the motion was entirely appropriate. When the court denied plaintiff's initial motion for summary judgment, it did so "without prejudice to another motion for summary judgment" with the submission of additional evidence (see CPLR 3212[f]).

Plaintiff established its prima facie entitlement to judgment as a matter of law on its claims for breach of the equipment lease agreement and service maintenance agreement by submitting the subject agreements, the agreement assigning AFGA Corporation's rights to plaintiff and evidence of nonpayment in the form of the demand notices (see Advanta Leasing Servs. v Laurel Way Spur Petroleum Corp., 11 AD3d 571 [2004]). In opposition, defendants failed to raise a triable issue of fact. Contrary to defendants' argument that plaintiff failed to meet its obligations under the service maintenance agreement, any alleged failure by plaintiff to provide parts and services had no bearing on defendants' breach under the lease agreement. Moreover, the record establishes that plaintiff indeed continued servicing the equipment during the relevant time period.

Plaintiff also established its entitlement to summary judgment on its conversion cause of action. Plaintiff submitted evidence demonstrating that the individual defendant exercised unauthorized dominion and control over the equipment by making unapproved alterations to it, by removing the equipment from the installation site without notice or consent and by relocating the equipment to his new business (see Meese v Miller, 79 AD2d 237, 242 [1981] ["(c)onversion is any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessory right of another in the property"]). Defendants' opposition failed to raise a triable issue of fact. The affidavit from  the individual defendant conflicted with his deposition testimony and appears tailored to avoid the consequences of his earlier testimony (see e.g. Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]).


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