Author: DMG

CPLR R. 3212 When and Why

CPLR R. 3212

Light v Light, 2009 NY Slip Op 05847 (App. Div., 2nd, 2009)

A motion for summary judgment may be made after issue has been
joined based on CPLR 3211(a) grounds which have been asserted in the
answer (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Mann v Malasky, 41 AD3d 1136).
Accordingly, the appellant could move for summary judgment dismissing
the complaint insofar as asserted against her after she served her
answer, based upon the affirmative defense of failure to state a cause
of action (see CPLR 3211[a][7]; CPLR 3211[e]). Contrary to the
plaintiff's contention, the doctrine of the law of the case does not
apply, as the Supreme Court did not determine, on the merits, whether
the complaint stated valid causes of action on the previous motion
pursuant to CPLR 3211(a)(1) (see Kopsidas v Krokos, 18 AD3d 822; Gay v Farella, 5 AD3d 540).

…

The Supreme Court improvidently exercised its discretion in
granting that branch of the plaintiff's motion which was to preclude
certain testimony and evidence (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997; Assael v Metropolitan Tr. Auth., 4 AD3d 443), as the plaintiff failed to demonstrate that she was entitled to the drastic remedy of preclusion (see Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 24 AD3d 742).

The Supreme Court providently exercised its discretion in
denying that branch of the appellant's cross motion which was to
disqualify the plaintiff's attorney, as the appellant failed to
establish that the attorney's testimony was necessary (see Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999, 1000; Bentvena v Edelman, 47 AD3d 651).

I don't know why, but I think this decision will wind up being cited more than most of the other 3212 decisions.

The bold is mine.

CPLR R. 2221(e) Motion for Leave to Renew (Explain Yourself)

CPLR R. 2221(e) Motion for Leave to Renew

Carullo v Pistilli Constr. & Dev. Corp., 2009 NY Slip Op 05841 (App. Div., 2nd, 2009)

A motion for leave to renew must be based upon new or additional facts
"not offered on the prior motion that would change the prior
determination" (CPLR 2221[e][2]), and "shall contain reasonable
justification for the failure to present such facts on the prior
motion" (CPLR 2221[e][3]; see O'Connell v Post, 27 AD3d 631; see also O'Dell v Caswell, 12 AD3d 492; Rizzotto v Allstate Ins. Co., 300 AD2d 562; Williams v Fitzsimmons, 295
AD2d 342). The plaintiff's motion for leave to renew was properly
denied since he failed to set forth a reasonable justification for his
failure to present the alleged new facts on the prior motion (see O'Connell v Post, 27 AD3d at 631).

NYCTL 1999-1 Trust v Surf Coney Is., Inc., 2009 NY Slip Op 05306 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying that
branch of the plaintiffs' motion which was for leave to renew. The
plaintiffs failed to present a reasonable justification for their
failure to present certain "new facts" on the original motion and cross
motion (CPLR 2221[e][3]; see O'Connell v Post, 27 AD3d 631; Renna v Gullo, 19 AD3d 472). In any event, those facts would not have changed the prior determinations (see CPLR 2221[e][2]; Renna v Gullo, 19 AD3d at 472).

CPLR § 3213

CPLR § 3213 Motion for summary judgment in lieu of complaint

Agai v Diontech Consulting, Inc., 2009 NY Slip Op 05839 (App. Div., 2nd, 2009)

The appeal from the intermediate order must be dismissed because the
right of direct appeal therefrom terminated with the entry of judgment
in the action (see Matter of Aho, 39 NY2d 241, 248). The issues
raised on the appeal from the order are brought up for review and have
been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The plaintiff established his prima facie entitlement to
judgment as a matter of law by submitting proof of the promissory note
and guarantee, and of the defendants' default (see Cutter Bayview Cleaners, Inc. v Spotless Shirts, Inc., 57 AD3d 708; Black Rock, Inc. v Z Best Car Wash, 27 AD3d 409; Brennan v Shapiro, 12 AD3d 547,
549). However, in response, the defendants showed the existence of a
triable issue of fact as to whether money allegedly owed to them in
connection with a project completed by a limited liability corporation
jointly owned by the plaintiff and the defendant Dennis Mihalatos was
retained by the plaintiff in partial satisfaction of the loan [*2]as per a subsequent agreement of the parties. Accordingly, the motion should have been denied (see Cor Rte. 5 Co., LLC v Saracene, 59 AD3d 1006; Khoury v Khoury, 280 AD2d 453).

I posted this case, not because it's particularly profound, but because you don't see too many 3213 appeals.

CPLR R. 3212; Watch your Stip (2nd to last decision)

CPLR R. 3212 Motion for summary judgment
(f) Facts unavailable to opposing party

Baines v G&D Ventures, Inc., 2009 NY Slip Op 05735 (App. Div., 2nd, 2009)

A defendant may be held liable for a slip-and-fall incident
involving snow and ice on its property upon a showing that, among other
things, the defendant had actual or constructive notice of the
allegedly dangerous condition (see Taylor v Rochdale Vil., Inc., 60 AD3d 930; Raju v Cortlandt Town Ctr., 38 AD3d 874).
Thus, "[o]n a motion for summary judgment to dismiss the complaint
based upon lack of notice, the defendant is required to make a prima
facie showing affirmatively establishing the absence of notice as a
matter of law" (Goldman v Waldbaum, Inc., 248 [*2]AD2d 436, 437). This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case, as the defendant did here (see Totten v Cumberland Farms, Inc., 57 AD3d 653; South v K-Mart Corp., 24 AD3d 748).
In support of its motion, the defendant submitted the deposition
testimony of its president, who allegedly inspected the premises on an
"almost" daily basis. However, the defendant's president failed to
provide any testimony as to when he last inspected the subject sidewalk
prior to the accident or what it looked like when he last inspected it.
Further, the mere fact that the icy condition which allegedly caused
the plaintiff to fall was open and obvious does not preclude a finding
of liability, but rather raises an issue of fact regarding comparative
negligence (see Sewitch v Lafrese, 41 AD3d 695; Ettari v 30 Rampasture Owners, Inc., 15 AD3d 611).

Accordingly, the defendant failed to meet its initial burden as
the movant, and the Supreme Court should have denied its motion for
summary judgment dismissing the complaint insofar as asserted against
it. Since the defendant did not meet its initial burden, we need not
review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Financial Freedom Senior Funding Corp. v Rose, 2009 NY Slip Op 05745 (App. Div., 2nd, 2009)

There was no need to join the estate of the now-deceased mortgagor,
the father of the respondents Steven Rose and Debra Rosenberg, as it
appears that he died intestate and the complaint does not seek a
deficiency judgment (see Countrywide Home Loans, Inc. v Keys, 27 AD3d 247; Winter v Kram, 3 AD2d 175).

However, the Supreme Court properly denied summary judgment to
the plaintiff, although the motion should have been denied without
prejudice to renewal upon completion of discovery. The respondents
alleged that the now-deceased mortgagor was incompetent when he
executed the subject loan, and that the plaintiff knew or should have
known of the incompetence, which, if both facts are proven, would
constitute a basis to void this transaction (see Ortelere v Teachers' Retirement Bd., 25 NY2d 196; Matter of Loretta I., 34 AD3d 480; see generally Peterson v Spartan Ind., 33 NY2d 463, 465-466; Matter of People v Jaguar Sales, LLC, 61 AD3d 872; Benfeld v Fleming Props, LLC, 38 AD3d 814; Ying Jun Chen v Lei Shi, 19 AD3d 407).
Since the respondent Steven Rose set out a sufficient basis for his
inability to include medical evidence as to the decedent's mental
capacity in his opposition papers, further discovery was warranted.

Woods v 126 Riverside Dr. Corp., 2009 NY Slip Op 05634 (App. Div., 1st, 2009)

Insofar as plaintiffs claim that the motion was premature, they failed
to show that facts essential to the motion were in defendants'
exclusive knowledge or that discovery might lead to facts relevant to
the issues (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557
[2007]). Since plaintiffs were relying on statements they claim were
made to them by defendants' representatives, such facts were not within
defendants' exclusive knowledge.

Corchado v City of New York, 2009 NY Slip Op 05642 (App. Div., 1st, 2009)

The parties' so-ordered stipulation clearly provided that summary
judgment motions were "to be filed" within 60 days of the filing of the
note of issue. Since the note of issue was filed on October 24, 2007,
summary judgment motions were to be filed by December 23, 2007. While
Hallen served its motion on December 21, 2007, it did not file the
motion until January 4, 2008. Plaintiff's opposition asserted the
untimeliness of Hallen's motion, to which Hallen replied that its
motion was timely because served within 90 days of the filing of the
note of issue. We reject Hallen's argument that CPLR 3212(a) authorizes
a court to set a deadline only for the making, i.e., service, not the
filing, of summary judgment motions (see e.g. Corbi v Avenue Woodward Corp.,
260 AD2d 255, 255 [1999]) because the parties, with the court's
consent, were free to chart a procedural course that deviated from the
path established by the CPLR (see Katz v Robinson Silverman Pearce Aronsohn & Berman LLP,
277 AD2d 70, 73 [2000] ["Parties are afforded great latitude in
charting their procedural course through the courts, by stipulation or
otherwise"] [internal citations omitted]). Thus, we affirm the denial
of Hallen's motion as untimely since Hallen offered no excuse for the
late filing (see Brill v City of New York, 2 NY3d 648, 652 [2004]), and we decline to consider Hallen's contention that good cause exists to [*2]consider
the motion because the parties misread the so-ordered stipulation and
believed that the 60-day deadline applied to the serving, not the
filing, of summary judgment motions. That contention was raised
improperly for the first time on appeal. In view of the foregoing, we
decline to reach the merits of Hallen's motion.

Not something you see very often. 

Braudy v Best Buy Co., Inc., 2009 NY Slip Op 05499 (App. Div., 2nd, 2009)

"To meet its initial burden on the issue of lack of constructive
notice, the defendant must offer some evidence as to when the area in
question was last cleaned or inspected relative to the time when the
plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598,
598-599). Since the defendant failed to do so here, the Supreme Court
correctly denied the defendant's motion without regard to the
sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

The bold is mine.

Parol Evidence

Beagle Developers, LLC v Long Is. Beagle Club #II, Inc., 2009 NY Slip Op 05258 (App. Div., 1st, 2009)

Nor were the contract's unambiguous terms modified by defendant's
attempt to accommodate plaintiff's requests for documents relating to
the merger. The contract clearly states that a waiver of any right at
one time does not waive any right at any other time, and further states
that the contract may only be modified in writing. Plaintiff cannot
negate these unambiguous terms by parol evidence (see Namad v Salomon, 74 NY2d 751, 753 [1989]; Rose v Spa Realty Assoc.,
42 NY2d 338, 343 [1977]).

The bold is mine

Another Sighting of the Rare Motion to Replead (CPLR R. 3211(e))

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(e) Motion to replead

For some much needed background on this procedural novelty read Janssen v Incorporated Vil. of Rockville Ctr., 2008 NY Slip Op 09962 (App. Div., 2nd).  For the shorter, highlighted version, click HERE.

Clark v Pfizer, Inc., 2009 NY Slip Op 05743 (App. Div., 2nd, 2009)

The defendant correctly contends that the appeal from the order
dated November 2, 2007, must be dismissed, inasmuch as the plaintiff
failed to file a notice of appeal within 35 days after service upon him
by mail of that order with notice of entry (see CPLR 2103[b][2]; 2103[c], 5513[a]; Matter of Wei v New York State Dept. of Motor Vehs., 56 AD3d 484, 485; Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417; Matter of Eagle Ins. Co. v Soto, 254 AD2d 483).

Moreover, the Supreme Court properly denied that branch of the
plaintiff's motion which was, in effect, for leave to replead so as to
assert a cause of action to recover damages for discrimination in the
terms, privileges, and conditions of employment in violation of
Executive Law [*2]§ 296. A motion
for leave to replead, although now constituting little more than a
"poor substitute" or "arcane alternative" to a motion for leave to
amend a pleading under CPLR 3025(b) (Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 19), is still cognizable and is not expressly "constrained by any time limitation" (id.).
Nonetheless, in the matter before us, the proposed complaint, as sought
to be repleaded, is palpably insufficient and patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 226-227; see also Barnum v New York City Tr. Auth., 62 AD3d 736).

The bold is mine.

22 NYCRR 202.42(a): To Bifurcate or Not to Bifurcate

22 NYCRR 202.42(a) Bifurcated Trials

Carbocci v Lake Grove Entertainment, LLC, 2009 NY Slip Op 05739 (App. Div., 2nd, 2009)

Trial courts are encouraged to conduct bifurcated trials in personal injury cases (see 22
NYCRR 202.42[a]). However, where the nature of the plaintiff's injuries
has an important bearing on the question of liability, a unified trial
should be held (see Wahid v Long Is. R.R. Co., 59 AD3d 712; Wright v New York City Hous. Auth., 273
AD2d 378). The party opposing bifurcation has the burden of showing
that the nature of the injuries necessarily assists the factfinder in
making a determination with respect to the issue of liability (see Barrera v Skaggs-Walsh, Inc., 279 AD2d 442).

Here, the plaintiff, Dolores Carbocci (hereinafter Carbocci),
fell while ice skating at a rink owned and operated by the defendant
Lake Grove Entertainment, LLC, doing business as Sports Plus
(hereinafter Sports Plus). The plaintiffs alleged that Carbocci was
removed from the ice [*2]by the defendant
Patrick Lever, an employee of Sports Plus, either negligently or
forcibly, despite Carbocci's instructions to not touch her and to call
an ambulance. The defendants assert that Carbocci stood up on her own
and was merely assisted from the ice by Lever and other employees of
Sports Plus. The plaintiffs moved for a unified trial asserting that
evidence with respect to her medical treatment was necessary to prove
her case. The Supreme Court denied the motion and, sua sponte, directed
the trial court to give a particular preliminary instruction to the
jury relating to the bifurcation of the case. We reverse.

The plaintiffs established that Carbocci's injuries are
interwoven with the existence or extent of the defendants' liability on
both the negligence and battery causes of action (see Sokolovsky v Mucip, Inc., 32 AD3d 1011). Evidence relating to Carbocci's injuries is probative in determining how the incident occurred (see Byrd v New York City Tr. Auth., 172 AD2d 579, 581; DeGregorio v Lutheran Med. Ctr., 142
AD2d 543). Accordingly, the plaintiffs' request for a unified trial was
improperly denied as the issues of liability and damages are
inseparable (see Jacobs v Broidy, 88 AD2d 904; cf. Pasquaretto v Cohen, 37 AD3d 440).

In light of the foregoing, the preliminary instruction the
Supreme Court directed the trial court to give to the jury is
unnecessary.

The bold is mine.

CPLR R. 2221(e) “Retention of New Expert not Legitimate Basis for Renewal”

CPLR R. 2221(e) Motion for Leave to Renew

Burgos v Rateb, 2009 NY Slip Op 05738 (App. Div., 2nd, 2009)

The Supreme Court properly
denied that branch of the plaintiff's motion which was for leave to
renew, as the plaintiff failed to offer a reasonable justification for
her failure to present the evidence offered in support of renewal in
her opposition to that branch of Shahin's original motion which was for
summary judgment dismissing the complaint insofar as asserted against
him (see CPLR 2221[e]; Orlando v City of New York, 21 AD3d 357).
The retention of a new expert is not a legitimate basis for renewal;
renewal "is not a second chance freely given to parties who have not
exercised due diligence in making their first factual presentation" (Welch Foods v Wilson, 247 AD2d 830, 831; see Reshevsky v United Water N.Y., Inc., 46 AD3d 532; Mundo v SMS Hasenclever Maschinenfabrik, 224 AD2d 343, 344).

The bold is mine.

Rule Against Perpetuities

How often do you see one of these?

It's a long decision.  I'm not editing down.  I am however, making you click a quarter way through to get to the rest of the case.  You could probably just click the link too.  Whatever you want to do is fine with me.

Bleecker St. Tenants Corp. v Bleeker Jones LLC, 2009 NY Slip Op 05196 (App. Div., 1st, 2009)

This appeal requires us to consider the centuries-old Rule against Perpetuities, [*2]specifically,
whether the exception to the prohibition against remote vesting of
options appurtenant to a lease is applicable to the renewal option
clause contained in the parties' lease.

Plaintiff Bleecker Street Tenants Corp. is the owner of the
building located at 277-279 Bleecker Street, a six-story walkup that
was converted to cooperative ownership effective September 1, 1983.
Contemporaneously with the co-op conversion, the building's first-floor
commercial space was leased to defendant Bleeker Jones LLC's
predecessor in interest, Bleecker Jones Leasing Company, a partnership
made up of the same four individuals who made up the sponsor
partnership.

The lease, drafted by the tenant, provided for an initial term
of 14 years, with nine options to renew for consecutive 10-year
periods, exercisable through a series of notices. The tenant could
exercise the renewal options by giving written notice at least six
months before the end of the preceding term; the lease also provided
that the landlord would send the tenant a "reminder notice" regarding
the option, seven months before the end of the preceding term, if the
tenant had not already exercised the option. In the event that the
landlord did not send the seven-month notice and the tenant did not
exercise the option on six months' notice, then the renewal option
would remain in effect until such time as the landlord sent the tenant
notice of its right to exercise the option. Once the landlord sent the
tenant this final written notice, the tenant would have 60 days within
which to exercise the renewal option. The lease further provided that,
in the event that the renewal option went unexercised and the landlord
did not send the 60-day notice, then, "[i]f the term shall have
expired, Lessee shall remain in possession as a month-to-month tenant"
until such time as the landlord sent the 60-day notice.

At the end of the initial 14-year lease term, on August 30,
1997, there was no exercise of the lease option. Accordingly, the
commercial tenant thereafter remained in possession as a month-to-month
tenant.

Plaintiff commenced this action in December 2007, seeking a
declaration that the lease renewal options are void under the statutory
and common-law rules against perpetuities and unreasonable restraints
on alienation.

Defendants moved, and plaintiff cross-moved, for summary
judgment. The motion court granted defendants' motion, ruling that the
Rule against Perpetuities does not apply because the lease's renewal
option is appurtenant to the lease, in that it " originates in one of
the lease provisions, is not exercisable after lease expiration, and is
incapable of separation from the lease'" (quoting Symphony Space v Pergola Props.,
88 NY2d 466, 480 [1996]). The court reasoned that during the period of
extended month-to-month possession, "[w]hile the term' of the lease may
expire upon the failure of either party to issue their respective
notices, the Lease itself does not."

New York's statutory Rule against Perpetuities includes a
codification of the common-law rule prohibiting the remote vesting of
interests and provides that "[n]o estate in property shall be valid
unless it must vest, if at all, not later than twenty-one years after
one or more lives in being at the creation of the estate . . ." (EPTL
9-1.1[b]). Stated another way, subsection (b) " invalidates any
interest that may not vest within the prescribed time period'" (Symphony Space v Pergola Props., 88 NY2d at 476, quoting Wildenstein & Co. v Wallis, 79 NY2d 641, 647-648 [*3][1992]).
The rule flows from "the principle that it is socially undesirable for
property to be inalienable for an unreasonable period of time" (Symphony Space,
88 NY2d at 475), and is designed to " ensure the productive use and
development of property by its current beneficial owners by simplifying
ownership, facilitating exchange and freeing property from unknown or
embarrassing impediments to alienability'" (id., quoting Metropolitan Transp. Auth. v Bruken Realty Corp.,
67 NY2d 156, 161 [1986]). Although the statutory period is lives in
being plus 21 years, where —- as here — the parties to the agreement
are corporate entities and no measuring lives are stated in the
instrument, "the perpetuities period is simply 21 years" (Symphony Space, 88 NY2d at 481; Bruken Realty, 67 NY2d at 161).

The rule against remote vesting has been held to be applicable to purchase options contained in leases (see Symphony Space at 476), as well as to lease renewal options contained in leases (see Warren St. Assoc. v City Hall Tower Corp., 202 AD2d 200, 200-201 [1994]).

On their face, all except the first of the renewal options
provided for here would run afoul of the rule, as they vest more than
21 years after execution of the lease (see e.g. Warren St. Assoc., supra).
However, an exception to the rule's generally strict application exists
for options appurtenant to a lease, which are considered "part of" the
lease (see Buffalo Seminary v McCarthy, 86 AD2d 435, 441 n5 [1982], affd
58 NY2d 867 [1983]). The required characteristics of such options are
that they (1) "originate[] in one of the lease provisions," (2) are
"not exercisable after lease expiration," and (3) are "incapable of
separation from the lease" (Symphony Space, 88 NY2d at 480).

Continue reading “Rule Against Perpetuities”

CPLR § 4110-b

CPLR § 4110-b Instructions to jury; objection

Klein-Bullock v North Shore Univ. Hosp. at Forest Hills, 2009 NY Slip Op 04966 (App. Div., 2nd, 2009)

The claimed errors in the verdict sheet are not preserved for appellate
review since plaintiffs did not object thereto (CPLR 4110-b; see Suria v Shiffman, 67 NY2d 87, 97 [1986]), and we decline to review them (see Pagnotta v Diamond, 51 AD3d 1099,
1100 [2008]). In any event, nothing in the record or verdict indicates
that the jury was confused by the wording of the interrogatories (cf. e.g. Herbert H. Post & Co. v Sidney Bitterman, Inc., 219 AD2d 214, 223 [1996]), and no issues were
raised as to general negligence (see McKoy v County of Westchester, 272 AD2d 307 [2000]; Wahler v Lockport Physical Therapy, 275 AD2d 906 [2000], lv denied 96 NY2d 701 [2001]) or res ipsa loquitur (see Kruck v St. John's Episcopal Hosp., 228 AD2d 565 [1996]) that should have been charged and submitted to the jury.

The bold is mine.