CPLR R. 3212 and such

CPLR R. 3212 Motion for summary judgment

Pleadings required

Fiber Consultants, Inc. v Fiber Optek Interconnect Corp., 2011 NY Slip Op 04412 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of the cross motion of the defendant Michael S. Pascazi which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him. "A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90-day period" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503). Here, Pascazi's 90-day demand was served prior to joinder of issue on the third amended complaint and, thus, was premature.

However, the Supreme Court erred in granting that branch of the plaintiff's motion which was for summary judgment on its eighth cause of action for an award of an attorney's fee insofar as asserted against Pascazi to the extent of finding that the plaintiff was entitled to attorney's fees pursuant to  Debtor and Creditor Law § 276-a and directing a hearing to determine the amount of such fees due the plaintiff. Denial of summary judgment was required since the plaintiff failed to include a copy of the pleadings in support of its motion, as required by CPLR 3212(b) (see Matter of Fraternal Order of Eagles v Board of Assessors, 73 AD3d 770, 771; Zellner v Tarnell, 54 AD3d 329, 329-330; Sendor v Chervin, 51 AD3d 1003; Thompson v Foreign Cars Ctr., Inc., 40 AD3d 965; Matsyuk v Konkalipos, 35 AD3d 675; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663). Under the circumstances of this case, the Supreme Court should have denied the motion without prejudice to renewal upon proper papers (see Wider v Heller, 24 AD3d 433, 434; Greene v Wood, 6 AD3d 976, 977; Welton v Drobnicki, 298 AD2d 757, 757).

Capasso v Capasso, 2011 NY Slip Op 04187 (App. Div., 2nd 2011)

The plaintiff's contention that summary judgment was granted prematurely under the facts of this case is without merit. The belief that additional discovery might reveal something helpful to her case does not provide a basis pursuant to CPLR 3212(f) for postponing a determination of summary judgment in this case (see Morissaint v Raemar Corp., 271 AD2d 586).

Horn v Hires, 2011 NY Slip Op 04205 (App. Div., 2nd 2011)

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff raised new theories of liability for the first time in opposition to the motion which should not have been considered in light of the plaintiff's protracted delay in presenting those new theories (see Gallello v MARJ Distribs., Inc., 50 AD3d 734, 736; Medina v Sears, Roebuck & Co., 41 AD3d 798, 799-800; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524). Accordingly, the Supreme Court should have granted the defendant's motion, in effect, for summary judgment dismissing the complaint.

James v Aircraft Serv. Intl. Group, 2011 NY Slip Op 04206 (App. DIv., 2nd 2011)

"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 stated" (Matter of Fasciglione, 73 AD3d 769, 770; see CPLR 3212[f]; Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). "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; see Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). Here, the appellant moved for summary judgment dismissing the complaint insofar as asserted against it prior to the exchange of any discovery. Under the circumstances of this case, the Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it without prejudice to renewal after the completion of discovery.

Personak Knowledge

Lopez v Stop & Shop Supermarket Co., LLC, 2011 NY Slip Op 04009 (App. DIv., 2nd 2011)

In this case, since the appellants failed to offer proof by a person with personal knowledge, they failed to establish prima facie that they were not aware of the hazardous condition complained of by the plaintiff, which was the wet packaging of the beer the plaintiff was carrying at the time of the alleged accident. Accordingly, the Supreme Court correctly denied their summary judgment motion without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

Teitelbaum v Crown Hgts. Assn. for the Betterment, 2011 NY Slip Op 04038 (App. Div., 2nd 2011)

The Supreme Court, however, should have denied, as untimely, that branch of the City's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it. The City failed to demonstrate good cause for its delay in making the cross motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652; Bickelman v Herrill Bowling Corp., 49 AD3d 578, 580). Contrary to the City's contention, the issues raised on its cross motion were not "nearly identical" to the issues raised on Crown Heights's motion (Ianello v O'Connor, 58 AD3d 684, 686; see Joyner-Pack v Sykes, 54 AD3d 727, 728; Grande v Peteroy, 39 AD3d 590, 592; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 496-497).

Jones v Pinnacle Dunbar Manor, LLC, 2011 NY Slip Op 04091 (App. Div., 1st 2011)

Defendant's motion for summary judgment was properly denied as untimely (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]). Defendant's excuse that it failed to timely file its motion due to the misplacement of a necessary affidavit does not demonstrate "good cause" within the meaning of CPLR 3212(a) (see Perini Corp. v City of New York [Department of Envtl. Protection], 16 AD3d 37, 40 [2005]). Even if we were to excuse defendant's tardiness, we would still be constrained to deny the motion, due to the presence of numerous issues of fact precluding summary judgment.

 Prove a negative?

Suits v Wyckoff Hgts. Med. Ctr., 2011 NY Slip Op 03894 (App. DIv., 1st 2011)

Wyckoff Heights, however, failed to make a prima facie showing that neither it nor its employees committed independent acts of negligence (see Fiorentino v Wenger, 19 NY2d 407, 414 [1967] ["[w]here a hospital's alleged misconduct involves an omission to act, the hospital will not be held responsible unless it had reason to know that it should have acted within the duty it concededly had"]). Indeed, in its motion for partial summary judgment, Wyckoff Heights merely attached the pleadings and bill of particulars. Significantly, Abakporo's deposition testimony was not included [FN1]. Thus, Wyckoff Heights failed to establish its prima facie entitlement to summary judgment, and accordingly the burden never shifted to plaintiff to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

That plaintiffs' bill of particulars stated that plaintiffs believed that the injuries were caused by Dr. Abakporo's negligence is of no moment inasmuch as the underlying pleadings must be liberally construed (CPLR 3026). In any event, plaintiffs' action is not limited to the wording in the bill of particulars cited by the majority, especially when plaintiffs also stated that their claim was against Wyckoff Heights' employees and agents (see Toth v Bloshinsky, 39 AD3d at 849 [holding that all that was required of the plaintiff in serving a bill of particulars was to "provide a general statement of the acts or omissions constituting the alleged negligence"]). In short, the specific wording of the bill of particulars cited by the majority did not relieve Wyckoff Heights of its obligation to establish its prima facie entitlement to summary judgment with proof in admissible form.

One thought on “CPLR R. 3212 and such”

  1. I have come across the negative proof problem asserted in Suits v Wycoff Hosp. before. To overcome it, in most cases, one can put in an affidavit from the client stating, I did X Y and Z, and those things are not negligence. You can’t win, before most judges, on the basis that the Plaintiff has not sustained its burden of proof.


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