CPLR 3212 and its variations

Cabrera v New York City Dept. of Educ., 2012 NY Slip Op 00834 (1st Dept., 2012)

Defendant Department of Education (DOE) is not entitled to summary judgment because there is sufficient evidence in the record to raise a question of fact as to whether it knew of a recurring dangerous condition in the fence and routinely left it unaddressed (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107 [2003]) or whether it undertook repairs and performed them negligently (see e.g. Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226-227 [2002]).

TrizecHahn, Inc. v Timbil Chiller Maintenance Corp., 2012 NY Slip Op 00712 (1st Dept., 2012)

Moreover, although Timbil submitted, in reply, affidavits from two servicemen who said they performed an overspeed trip test on November 8, 2000, a movant may not "remedy a fundamental deficiency in the moving papers by submitting evidentiary material with the reply" (Ford v Weishaus, 86 AD3d 421, 422 [2011] [internal quotation marks and citation omitted]).

Sangare v Edwards, 2012 NY Slip Op 00290 (1st Dept., 2012)

Plaintiff commenced an action alleging assault and battery against Edwards, and negligence against Dermer, contending that Dermer knew or should have known of Edwards's violent tendencies. Dermer amended its answer to include a workers' compensation defense, asserting that as a special employee of Dermer, plaintiff's sole and exclusive remedy was workers' compensation. Dermer did not otherwise raise or pursue the workers' compensation issue during the course of the litigation.

Following discovery, by order to show cause, Dermer moved to refer the matter to the Workers' Compensation Board (WCB) for a determination as to whether plaintiff was the special employee of Dermer, and to stay the proceedings pending such determination. Plaintiff opposed the motion, arguing, inter alia, that the motion was untimely, and, in any event, that plaintiff was the employee of Soho, not Dermer.

The court denied the motion, noting that it was "not obligated in all cases to defer to the WCB's primary jurisdiction by referring employment issues to the WCB." The court declined to [*2]reach the merits of Dermer's status as a special employer, since the issue was not before it, and the time to make a summary judgment motion had expired. The court stated that it was unwilling to further delay this case "on the eve of trial" by referring the matter to the WCB so that Dermer could obtain what it had failed to timely seek before the court, namely, a summary determination of its fourth affirmative defense.

We agree that under the particular circumstances of this case, referral was not indicated, and now affirm. We note, as an initial matter, that the compensation issue was never litigated before the Board because plaintiff, while working a reduced schedule following the incident, continued to receive his full salary and benefits from Soho. Dermer, other than asserting the workers' compensation statute as an affirmative defense in its answer, failed to raise the issue during the entire course of the litigation, and indeed, only raised the issue on the eve of trial, when discovery was complete and the time for making summary judgment motions had expired. The court aptly noted that Dermer was attempting to obtain via this motion relief it could no longer obtain by motion for summary judgment. Dermer may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation (see Bastidas v Epic Realty, LLC, 58 AD3d 776 [2009]).

Calcano v Rodriguez, 2012 NY Slip Op 00110 (1st Dept., 2012)

In sum, the Court of Appeals held in Thoma that a motion for summary judgment as to liability by a negligence plaintiff who cannot eliminate an issue as to his or her own comparative fault should simply be denied. This holding is binding on us, and we, like the Second Department, should follow it. Accordingly, we reverse the order appealed from and deny plaintiff's motion for summary judgment as to liability.

Tzilianos v New York City Tr. Auth., 2012 NY Slip Op 00026 (1st Dept., 2012)

Contrary to defendant's argument, we did not hold in Glover v New York City Tr. Auth. (60 AD3d 587 [2009], lv denied 13 NY3d 706 [2009]), that defendant's compliance with its own internal six-inch gap standard established non-negligence as a matter of law. In that case, the issue was whether the plaintiff produced competent evidence of the size of the gap (Glover at 587-588). The determination of the Court, namely reversal and dismissal of the complaint, was based upon the speculative and insufficient evidence of the width of the gap presented by the [*2]plaintiff in an attempt to show that the gap exceeded the six-inch standard. The Court, however, did not hold that compliance with the six-inch gap policy established the NYCTA's non-negligence as a matter of law.

In any event, even if we assumed defendant's gap standard is reflective of an industry standard or a generally accepted safety practice, the fact that it complied with its own internal operating rule constitutes some evidence that it exercised due care, but is not conclusive on the issue of liability. A jury must be satisfied with the reasonableness of the common practice, as well as the reasonableness of the behavior that adhered to the practice (see Trimarco v Klein, 56 NY2d 98, 105-107 [1982]). Therefore, defendant's compliance with its own internal standard is not a sufficient basis, standing alone, upon which to grant summary judgment in its favor.

Ostrov v Rozbruch, 2012 NY Slip Op 00022 (1st Dept., 2012)

We start with an examination of the basic purpose of summary judgment.

Calling summary judgment "a valuable, practical tool for resolving cases that involve only questions of law," the Court of Appeals stated it was "a great benefit both to the parties and to the overburdened New York State trial courts" by allowing a party to show that there is no material issue of fact to be tried, "thereby avoiding needless litigation cost and delay" (Brill v City of New York, 2 NY3d 648, 651 [2004]). As the Court recognized in Brill, these benefits can only be realized when motions for summary judgment are timely brought. The Legislature agreed, and in a 1996 amendment to CPLR 3212(a), provided that such motions be brought within 120 days after the filing of the note of issue, except for good cause shown. The goal, of course, is to provide a thorough presentation of the evidence on both sides and an expeditious determination by the court as to whether there are any material issues of fact to be tried.

Since summary judgment is the equivalent of a trial, it has been a cornerstone of New York jurisprudence that the proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law [*4](Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this requirement is met, the burden then shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, the motion court specifically found that defendant met his burden of establishing that he was entitled to judgment as a matter of law, thus shifting the burden to plaintiff to properly establish the existence of a material issue of fact. The court recognized that plaintiff's initial opposition papers did not meet that burden because of the "limited" discussion regarding whether the surgery on plaintiff's left knee was contraindicated. Although recognizing that this claim was possibly being raised for the first time in opposition to defendant's motion, the court, apparently relying on some of our prior decisions permitting additional submissions under limited circumstances, opted to permit the parties to submit additional evidence on this issue. The resulting submissions went well beyond the limitations our prior decisions envisioned.

It appears that our holdings in Orsini v Postel (267 AD2d 18 [1999]), Ashton v D.O.C.S. Continuum Med. Group, (68 AD3d 613 [2009]) and Tierney v Girardi (86 AD3d 447 [2011]) may have created the erroneous impression that supplemental submissions could be routinely utilized in summary judgment motions without regard to the scope of such submissions or the time limitations imposed by the CPLR. While such supplemental submissions may be appropriate in particular cases, they should be sparingly used and then only for a limited purpose. A careful reading of these cases warrants this conclusion.

In Orsini, which was decided before Brill, we found that the court properly exercised its discretion in accepting a supplemental physician's affirmation submitted by the plaintiff without leave of court in response to the defendant's reply papers. There, the affirmation "was submitted well in advance of argument, the IAS court expressly offered defendant an opportunity to respond, and it does not otherwise appear that defendant was prejudiced by the IAS court's preference to decide this eve-of-trial motion on as full a record as plaintiff wished to make" (267 AD2d at 18). Significantly, Orsini presented the type of "eve-of-trial" motion that Brill expressly condemned.

In Ashton, the court directed the plaintiff's expert to submit a supplemental affirmation elaborating solely on his initial conclusions. The defendants were also given a final opportunity to respond. We held that "the court properly exercised its discretion in directing plaintiff to submit a supplemental expert affirmation stating the basis for the expert's opinion, where defendants were permitted to respond and were not otherwise prejudiced." (68 AD3d at 614). Of note is the fact that, unlike here, the supplemental affirmation in Ashton was from the same expert, not a different expert in a different medical discipline, and was limited to a discrete issue, i.e., clarification of the grounds for the plaintiff's expert's initial conclusion.

Tierney presented a different situation. There, the defendants demonstrated their entitlement to judgment dismissing the complaint as a matter of law, shifting the burden to the plaintiff. The court properly exercised its discretion in excusing plaintiff's procedural oversights, "including the untimely filing of her expert's affirmation, where there was no showing that plaintiff acted in bad faith or that the late filing prejudiced defendants, and where the court [*5]permitted defendants to respond to the supplementary affidavit" (86 AD3d at 448). Once again, Tierney was not a situation where the plaintiff's opposition papers were insufficient and the parties were permitted to submit additional papers.

The supplemental submissions in all three cases were limited in scope and temporal duration. Indeed, there is no indication that the supplemental submissions included material from additional experts in other medical disciplines or information not originally referenced in plaintiff's initial opposition papers.

The situation before us in this case is very different.

As noted, both parties submitted supplemental expert affirmations from experts in different medical disciplines. Moreover, these affirmations expanded the scope of plaintiff's theory of medical malpractice beyond what was encompassed in the complaint and bill of particulars. Indeed, plaintiff's theory, as originally set forth in the complaint, alleged, inter alia, that the surgery was improperly performed. Her bill of particulars and supplementary bill of particulars only made oblique references to the failure to discuss alternatives to surgery and then only in the bill of particulars in response to defendant hospital's demands, not those of defendant doctor. "A court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint" (Mezger v Wyndham Homes, Inc., 81 AD3d 795, 796 [2011]; see also Abalola v Flower Hosp., 44 AD3d 522 [2007]). Since the court found plaintiff's opposition papers insufficient save for this new theory of recovery, defendant's motion should have been granted.

The problems created by open-ended supplemental submissions are manifest. A procedure designed to expeditiously determine a case took over 17 months from the time of the original filing of defendant's motion for summary judgment to the final order of the court. What started out as a limited inquiry into the basis of plaintiff's expert's conclusion that the surgery in question was contraindicated took on a life of its own, with the parties submitting affirmations from additional experts in a variety of medical disciplines. The improper submission of the medical article during the second oral argument caught defendant unawares. Importantly, none of the experts referenced this article in arriving at their opinions. Nevertheless, the court, over defendant's objections, received this article and utilized it as part of the basis for finding that plaintiff had raised a material issue of fact warranting a trial.

As the Court of Appeals stated in a different context, "[O]ur court system is dependent on all parties engaged in litigation abiding by the rules of proper practice" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010], citing Brill v City of New York, 2 NY3d 648 [2007], supra). We have held that "motion practice in connection with summary judgment should be confined to the limits imposed by CPLR 2214(b)" (Henry v Peguero, 72 AD3d 600, 602 [2010], appeal dismissed 15 NY3d 820 [2010]). We do not mean to limit the necessary discretion inherent in a court's authority to direct supplemental affirmations, in appropriate circumstances, such as those presented in Ashton or Tierney. Supplemental affirmations however, should be sparingly used to clarify limited issues, and should not be utilized as a matter of course to correct deficiencies in a party's moving or answering papers. [*6]

Accordingly, the order of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 21, 2010, which, to the extent appealed from as limited by the briefs, held defendant doctor's motion for summary judgment in abeyance pending the submission of further specified papers, should be reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint. The appeal from the order, same court and Justice, entered on or about January 20, 2011, which, to the extent appealed from, denied so much of defendant's motion for summary judgment as sought dismissal of plaintiff's claim that the left knee replacement surgery was contraindicated, should be dismissed, without costs, as academic.

Brown v Kass, 2012 NY Slip Op 00742 (2nd Dept., 2012)

The defendant moved, in effect, for summary judgment dismissing the complaint in Action No. 1 and for summary judgment dismissing the complaints insofar as asserted against him in Action Nos. 2, 3, and 4. The Supreme Court denied the motion, concluding that "there exist profound questions of credibility relating primarily to the parties themselves, and also to their respective witnesses,'" which precluded an award of summary judgment.

"It is not the court's function on a motion for summary judgment to assess credibility" (Ferrante v American Lung Assn., 90 NY2d 623, 631). " On a motion for summary judgment the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine,'" and " [a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact'" (Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731, 732, quoting 6243 Jericho Realty Corp. v AutoZone, Inc., 27 AD3d 447, 449). Summary judgment is inappropriate where triable issues of fact or credibility are raised that require a trial (see Zuckerman v City of New York, 49 NY2d 557).

Crawford v Smithtown Cent. School Dist., 2012 NY Slip Op 00746 (2nd Dept., 2012)

In opposition, the plaintiff failed to raise a triable issue of fact. The Supreme Court properly declined to consider the plaintiff's new theory of liability raised for the first time in opposition to the motion in light of the plaintiff's protracted delay in presenting it (see Horn v Hires, 84 AD3d 1025; Medina v Sears, Roebuck & Co., 41 AD3d 798).

Balducci v Velasquez, 2012 NY Slip Op 00921 (2nd Dept., 2012)

The Supreme Court also properly denied the separate cross motions of the Behnambakhshes and Decanio. The medical report of Dr. George V. DiGiacinto, submitted by the Behnambakhshes, was unaffirmed and, thus, in inadmissible form (see Grasso v Angerami, 79 NY2d 813; Lively v Fernandez, 85 AD3d 981; Pierson v Edwards, 77 AD3d 642; Vasquez v John Doe #1, 73 AD3d 1033). Furthermore, the admissible evidence relied upon by the Behnambakhshes did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the second accident, and the evidence relied upon by Decanio similarly did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the third accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Olic v Pappas, 47 AD3d 780). Since the Behnambakhshes and Decanio failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

Buffolino v City of New York, 2012 NY Slip Op 00924 (2nd Dept., 2012)

The Supreme Court properly denied, as untimely, the summary judgment motion of the defendant Stephanie Cho, which was made returnable six days beyond the deadline fixed by the Supreme Court in a so-ordered stipulation dated November 30, 2010, as she failed to demonstrate good cause for the delay (see CPLR 2004, 3212[a]; Brill v City of New York, 2 NY3d 648, 652; Van Dyke v Skanska USA Civ. Northeast, Inc., 83 AD3d 1049).

Jeansimon v Lumsden, 2012 NY Slip Op 00931 (2nd Dept,. 2012)

"Speculation and surmise are insufficient to defeat [*2]a motion for summary judgment" (Skouras v New York City Tr. Auth., 48 AD3d 547, 548; see Cusack v Peter Luger, Inc., 77 AD3d 785, 786; Cohen v Schachter, 51 AD3d 847; Frazier v City of New York, 47 AD3d 757; Smelley v Ahmed, 3 AD3d at 560; Portanova v Dynasty Meat Corp., 297 AD2d 792).

Taylor Bldg. Mgt., Inc. v Priority Payment Sys., LLC, 2012 NY Slip Op 00503 (2nd Dept., 2012)

In opposition, Priority failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d at 562). Rather, Priority's sole contention, and the focus of its submissions in opposition, was that Taylor would not be permitted to retain the $1.5 million contained in the reserve account, because, due to the alleged fraud committed by Woogo with respect to Global, Global would be permitted to offset its damages with the $1.5 million reserve account fund. At no point did Priority attempt to dispute the material allegations of Taylor's complaint.

Whatever allegations Global has made in the Georgia action with regard to the relationship between Woogo and Taylor, those allegations are not relevant to the issue raised in this appeal before this Court. Moreover, until Taylor is found liable to Global and a judgment is entered in Global's favor, any claim by Global that it is entitled to retain the funds contained in the reserve account is speculative.

Accordingly, the Supreme Court erred in denying Taylor's motion as premature, as further discovery of the relationship between Global and Woogo is irrelevant to the resolution of the motion at bar, and Priority has not identified any facts essential to justify opposition to which Priority did not have access (see Pacheco v Halstead Communications, Ltd., 90 AD3d 877; Ordonez v Levy, 19 AD3d 385, 386). Therefore, Taylor's motion for summary judgment on the issue of Priority's liability must be granted.


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