3211(a)(1), 3212(a)(f), among other things

NYP Holdings, Inc. v McClier Corp., 2011 NY Slip Op 02738 (App. Div., 1st 2011)

The motion that resulted in the order appealed from was Ruttura's second motion; it had previously made a motion for summary judgment dismissing the third-party complaint based on the volunteer doctrine (see 65 AD3d 186 [2009]).

As a general rule, "[p]arties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment" (Phoenix Four v Albertini, 245 AD2d 166, 167 [1997] [internal quotation marks and citation omitted]). However, there are exceptions to this rule (see e.g. Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39 [2002]).

Ruttura made its previous motion on behalf of all third-party defendants, and not every third-party defendant had the same subcontract with third-party plaintiff McClier Corporation that Ruttura did; for example, third-party defendant Stallone Testing Laboratories, Inc.'s subcontract was oral. Therefore, Ruttura was not barred from making the instant motion with respect to the cause of action for contractual indemnification. However, the arguments that Ruttura now raises with respect to common-law or implied indemnification (McClier's participation in the wrongdoing alleged by plaintiff), contribution (the lack of tort damages), and breach of contract (McClier's failure to allege damages other than indemnification damages) could have been made on behalf of all the third-party defendants; hence, they should have been raised on the prior motion (see Phoenix, 245 AD2d at 167).

In addition, third-party defendants Stallone, Fred Geller Electrical, Inc., and First Women's Fire Systems Corp. had previously moved to dismiss the third-party complaint; the court (Herman Cahn, J.) granted the motion in part and denied it in part (see 2007 NY Slip Op 34111[U]). To the extent these third-party defendants' interests were identical to Ruttura's, they were in privity (see Matter of Midland Ins. Co., 71 AD3d 221, 226 [2010]), and to the extent an issue was actually decided on the Stallone motion, law of the case applies (see id. at 225-226). Thus, law of the case bars McClier's contribution claim against Ruttura and permits the common-law indemnification and breach of contract claims to survive. However, it does not prevent Ruttura from moving against the contractual indemnification claim, as Justice Cahn did not decide this issue.

Because neither the rule against successive summary judgment motions nor law of the case barred Ruttura from moving against the contractual indemnification claim, we consider it on the merits. The indemnification provision in the McClier-Ruttura subcontract states, in pertinent part, "[T]he Subcontractor shall indemnify . . . the . . . Contractor . . . from and against all claims . . . arising out of or resulting from performance of the Subcontractor's Work . . ., provided that any such claim . . . is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself)" (emphasis added).

One paragraph of the complaint alleges, in conclusory fashion, that "the Post has been damaged and continues to suffer damages to itself and to other property" (emphasis added). However, conclusory allegations are insufficient (see Celnick v Freitag, 242 AD2d 436, 437 [1997]; Pitcock v Kasowitz, Benson, Torres & Friedman LLP, 74 AD3d 613, 615 [2010]). Read as a whole, the complaint's factual allegations show that the only property damage suffered by plaintiff was damage to its printing plant — for example, cracked concrete slabs and the fact that repair work will result in physical damage to the plant. Therefore, by submitting the complaint with its moving papers, Ruttura made a prima facie showing of entitlement to judgment as a matter of law on the contractual indemnification claim.

In opposition to this part of Ruttura's motion, McClier merely relied on the complaint. However, "[t]he burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified" (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 343 [1974] [internal quotation marks and citation omitted]). "Bald conclusory assertions are insufficient to defeat summary judgment" (Spaulding v Benenati, 57 NY2d 418, 425 [1982]).

Note all the issues here: Successive SJ, Law of the Case, Privity, etc.

Gonzalez v ARC Interior Constr., 2011 NY Slip Op 02728 (App. Div., 1st, 2011)

However, we reject plaintiff's argument that as part of the award of summary judgment, the court should have, essentially, dismissed the affirmative defense of culpable conduct as a matter of law. The police report and plaintiff's bare-bones affidavit stating that she looked for oncoming traffic before crossing the street were insufficient to eliminate any issue of fact whether plaintiff exercised reasonable care in crossing the intersection (see Thoma v Ronai, 189 AD2d 635 [1993], affd 82 NY2d 736 [1993]; Lopez v Garcia, 67 AD3d 558 [2009]; Hernandez v New York City Tr. Auth., 52 AD3d 367, 368 [2008]). It is noted again that the motion was made before defendants had an opportunity to depose plaintiff concerning the circumstances surrounding the accident and test her credibility (see Lopez, 67 AD3d at 558-559; CPLR 3212[f]; see also Donato v ELRAC, Inc., 18 AD3d 696, 698 [2005]). Thus, dismissal of the defense would have been premature.

Rivera v Board of Educ. of the City of New York, 2011 NY Slip Op 02142 (App. Div., 1st 2011)

While defendant's prior motion sought to dismiss either on the pleadings or on summary judgment and was denied as premature in light of the need for further discovery (with leave to renew within 120 days after a certain deposition was taken), the instant motion seeks to dismiss solely for failure to state a cause of action. Defendant therefore was not bound to bring the motion within the time imposed by the court for renewal of the summary judgment motion (see CPLR 3211[e]; Herman v Greenberg, 221 AD2d 251 [1995]). Nor does the motion violate the single motion rule (see CPLR 3211[e]), since the prior motion was not decided on the merits (see generally Ultramar Energy v Chase Manhattan Bank, 191 AD2d 86 [1993]; compare Miller v Schreyer, 257 AD2d 358, 361 [1999] ["the issue to be decided is whether defendants are entitled to a second determination of the identical question"]).

Comito v Foot of Main, LLC, 2011 NY Slip Op 02344 (App. Div., 2nd 2011)

The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1), contending that documentary evidence established the plaintiff's failure to comply with certain notice and payment provisions of the parties' stipulation of settlement. The items submitted to the Supreme Court by the defendants in support of their motion do not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997; Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1149-1150; Fontanetta v John Doe 1, 73 AD3d 78, 85-87). Even if these items constituted documentary evidence, they did not utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; All Is. Media, Inc. v Creative AD Worx, Inc., 79 AD3d 677; Granada Condominium III Assn. v Palomino, 78 AD3d at 996-997). Accordingly, the Supreme Court properly denied the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1).

Deleg v Vinci, 2011 NY Slip Op 02619 (App. Div., 2nd 2011)

Furthermore, contrary to the defendants' contention, the plaintiffs' motion was not premature, as the defendants failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiffs and the nonparty driver (see Kimyagarov v Nixon Taxi Corp., 45 AD3d 736). "[T]he defendants' purported need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts" (Abramov v Miral Corp., 24 AD3d 397, 398). "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; see Corwin v Heart Share Human Servs. of N.Y., 66 AD3d 814; Monteleone v Jung Pyo Hong, 79 AD3d 988). 

Freiman v JM Motor Holdings NR 125-139, LLC, 2011 NY Slip Op 02622 (App. Div. 2nd 2011)

Prior to the completion of discovery, the defendants moved for summary judgment dismissing the complaint. The defendants argued that the plaintiff's express written acknowledgments established that he was employed "at-will" and that the fraud allegations were patently insufficient, as they derived from his cause of action alleging breach of contract and were based on stated opinions or projections, rather than assertions of fact. The Supreme Court denied the motion for summary judgment, finding that the issues were "impossible to resolve" in the midst of discovery. We reverse.

****

There was no need to delay the determination of the motion by virtue of CPLR 3212(f). The plaintiff failed to demonstrate that additional discovery might lead to relevant evidence which would have defeated any branch of the defendants' motion (see Dempaire v City of New York, 61 AD3d 816; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621; Lopez v WS Distrib., Inc., 34 AD3d 759, 760).

Greenpoint Props., Inc. v Carter, 2011 NY Slip Op 02625 (App. Div., 2nd 2011)

The Supreme Court erred by, in effect, granting that branch of the defendant's motion which was for leave to serve and file a late motion for summary judgment, since the defendant failed to demonstrate good cause for not timely serving the motion as required by CPLR 3212(a) (see Brill v City of New York, 2 NY3d 648). "Significant outstanding discovery may, in certain circumstances, constitute good cause for the delay in making a motion for summary judgment" (Tower Ins. Co. of N.Y. v. Razy Assoc., 37 AD3d 702, 703; see Grochowski v Ben Rubins, LLC, 81 AD3d 589Kung v Zheng, 73 AD3d 862, 863; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1012-1013; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 745; Sclafani v Washington Mut., 36 AD3d 682, 682). Here, however, contrary to the defendant's contention, the discovery outstanding at the time the note of issue was filed was not essential to his motion (see Tower Ins. Co. of N.Y. v. Razy Assoc., 37 AD3d at 703). In the absence of a showing of good cause for the delay in filing a motion for summary judgment, "the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment" (John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899, 901; see Brill v City of New York, 2 NY3d at 652). Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was for leave to serve and file a late motion for summary judgment, and otherwise denied the motion as academic.

It's an interesting case on timing.

Great case on 3211(a)(1)

Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 2011 NY Slip Op 02628 (App. Div., 2nd 2011)

Further, the Supreme Court properly denied that branch of Scottsdale's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint based on a defense founded upon documentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996; Fontanetta v John Doe 1, 73 AD3d 78, 83; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d at 996, quoting Fontanetta v John Doe 1, 73 AD3d at 84-86). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence' within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997). The letters from the attorney and claims service relied upon by Scottsdale do not constitute "documentary evidence" for the purposes of CPLR 3211(a)(1).

Westport Ins. Co. v Altertec Energy Conservation, LLC, 2011 NY Slip Op 02652 (App. Div., 2nd 2011)

In response to Energy Spectrum's establishment of its entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact or establish that additional discovery was necessary to oppose the motion. While the plaintiff claimed that discovery was necessary, it failed to submit any affidavits establishing that facts existed which were essential to justify opposition to the motion but were not in its possession in light of the fact that discovery had yet to be completed (see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). "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" (Arpi v New York City Tr. Auth., 42 AD3d 478, 479; see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 687). Consequently, the Supreme Court should have granted Energy Spectrum's motion for summary judgment dismissing the complaint insofar as asserted against it.

 

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