More than one 3212 = no. And other stuff. And “a reasonable opportunity to conduct discovery”

Courthouse Corporate Ctr., LLC v Schulman, 2011 NY Slip Op 07801 (2nd Dept., 2011)

The defendants' motion for summary judgment dismissing the third cause of action was based on matters that could have been, but were not, raised in the defendants' prior motion for summary judgment. Multiple motions for summary judgment in the same action should be discouraged in the absence of a showing of newly-discovered evidence or other sufficient cause (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427; Flomenhaft v Fine Arts Museum of Long Is., 255 AD2d 290; Dillon v Dean, 170 AD2d 574). Accordingly, the Supreme Court correctly denied the defendants' motion.

Mintz & Gold, LLP v Zimmerman, 2011 NY Slip Op 08490 (1st Dept., 2011)

This was defendants' second motion for summary judgment. The motion court should have denied it on that basis, as defendants did not present sufficient cause for their successive motions (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426 [2011]). Even were we to reach the merits we would affirm because plaintiff was not required to plead special damages to set forth its claim under Civil Rights Law § 70, (see Civil Rights Law § 71).

Rubistello v Bartolini Landscaping, Inc., 2011 NY Slip Op 06483 (2nd Dept., 2011)

On its motion for summary judgment, the defendant bore the burden of " affirmatively demonstrat[ing] the merit of its claim or defense'" (Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 389, quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615) that it did not launch a force or instrument of harm as a result of a failure to exercise reasonable care in the performance of snow removal services. The defendant could not satisfy its burden by pointing to gaps in the plaintiff's proof (see Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388-389; George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d at 615). Having failed to come forward with evidence to negate this Espinal exception, the defendant failed to establish its prima facie entitlement to judgment as a matter of law on this issue, and the Supreme Court properly denied its motion.

Bank of Am., N.A. v Hillside Cycles, Inc., 2011 NY Slip Op 07788 (2nd Dept., 2011)

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Venables v Sagona, 46 AD3d 672, 673; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785; Betz v N.Y.C. Premier Props., Inc., 38 AD3d 815; cf. McFadyen Consulting Group, Inc. v Puritan's Pride, Inc., 87 AD3d 620). Here, contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in denying, as premature, that branch of its motion which was for summary judgment on the complaint,  inasmuch as discovery may result in disclosure of evidence relevant to the causes of action asserted in the complaint (see CPLR 3212[f]; Bond v DeMasco, 84 AD3d 1292, 1293; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Betz v N.Y.C. Premier Props., Inc., 38 AD3d at 815). The Supreme Court erred, however, in denying, as premature, those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's first, second, third, and twelfth affirmative defenses, and, in effect, that branch of the motion which was for summary judgment dismissing the sixth affirmative defense. The plaintiff established its entitlement to judgment as a matter of law by showing that those defenses were either inapplicable to this breach of contract action or without merit, and that discovery could not result in disclosure of evidence relevant to those affirmative defenses (see Castrol, Inc. v Parm Trading Co. of N.Y.C., 228 AD2d 633, 634). In opposition, the defendant failed to raise a triable issue of fact (see St. Clare Dev. Corp. v Porges, 70 AD3d 925; cf. Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 747, 749).

 Robiou v City of New York, 2011 NY Slip Op 08461 (1st Dept., 2009)

The motion court did not improvidently exercise its discretion in denying plaintiff's cross motion to strike defendant's answer (see Talansky v Schulman, 2 AD3d 355, 361-62 [2003]; Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Moreover, we agree with the motion court's conclusion that further discovery could not lead to "facts essential to justify opposition" (CPLR 3212[f]), warranting a denial of defendant's summary judgment motion (see Auerbach v Bennett, 47 NY2d 619, 636 [1979]; Banque Nationale de Paris v 1567 Broadway

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s