Author: DMG

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5)
on the ground that it is time-barred, the defendant bears the initial
burden of establishing, prima facie, that the time in which to sue has
expired (see Swift v New York Med. Coll., 25 AD3d 686, 687; Savarese v Shatz,
273 AD2d 219, 220). "In order to make a prima facie showing, the
defendant must establish, inter alia, when the plaintiff's cause of
action accrued" (Swift v New York Med. Coll., 25 AD3d at 687).
Moreover, in deciding a CPLR 3211 motion to dismiss, "a court must take
the allegations in the complaint as true and resolve all inferences in
favor of the plaintiff" (Sabadie v Burke, 47 AD3d 913, 914).

Construing the facts as alleged in the complaint in the light
most favorable to the plaintiff, the defendants failed to establish
their prima facie entitlement to dismissal pursuant to CPLR 3211(a)(5) (id.; see Swift v New York Med. Coll., 25 AD3d at 687). Accordingly, the Supreme Court [*2]erred in granting the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

Pav-Co and Fehr argue initially that since they had not yet had the
opportunity to answer and conduct discovery, the Supreme Court should
not have addressed the merits of this dispute in the course of
resolving the parties' various motions and cross motions. The short
answer to this contention is that by arguing the merits of their
respective positions on the basis of factual affidavits and extensive
documentary evidence, the parties charted a summary judgment course and
[*8]cannot be heard to complain that the Supreme Court addressed their motions under the summary judgment standard (see Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d 500, 502; Doukas v Doukas, 47 AD3d 753; Harris v Hallberg, 36 AD3d 857,
858). Moreover, the record reflects that all of the parties had ample
opportunity in the course of the extensive motion practice before the
Supreme Court to submit whatever evidentiary material they deemed
appropriate to support their substantive assertions with respect to the
issue of liability. As to their claimed need for discovery, these
defendants failed to satisfy their burden of offering "an evidentiary
basis to suggest that discovery may lead to relevant evidence" or that
"facts essential to justify opposition to the motion were exclusively
within the knowledge and control of the plaintiff" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760; see Torres v American Bldg. Maintenance Co. of NY, 51 AD3d 905, 906; Alizio v Perpignano, 39 AD3d 781,
784). As we note below, however, upon remittal, the Supreme Court may,
in its discretion, deem additional discovery necessary with respect to
the issue of damages.

Northeast and Zorn argue that our dismissal of The Hamlet's previous
appeal from an order dated August 10, 2006, in which the Supreme Court
addressed the issue of conversion, by reason of The Hamlet's failure to
perfect that appeal, precludes our review of that issue on The Hamlet's
cross appeal from the order dated May 5, 2006, in which the same issue
was decided. That contention is incorrect. As a general rule, we do not
consider issues that were raised, or could have been raised, in a
previous appeal which was dismissed for lack of prosecution, although
we have inherent jurisdiction to do so (see Bray v Cox, 38 NY2d 350; DiGiaro v Agrawal, 41 AD3d 764,
765). Here, however, the opposite situation is presented. The order and
the judgment under review in Appeals No. 1 and 2 were entered in May
2006, while the dismissed appeal was from a subsequent order entered in
August 2006. While the better practice would have been to withdraw the
subsequent appeal, The Hamlet is not precluded from raising its
arguments with respect to the conversion cause of action on the present
cross appeal, which is taken from the earlier order and judgment (cf. Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 753-754).

The defendant did not submit an affidavit setting forth his
version of the occurrence. The motion was opposed solely by an
affirmation of counsel, which was insufficient to raise a triable issue
of fact (see Wesh v Laidlaw, 59 AD3d 534; Prince v Accardo, 54 AD3d 837, 838). The defendant failed [*2]to make an evidentiary showing that discovery would yield material and relevant evidence (see LKE Family Limited Partnership v Gillen Living Trust, 59 AD3d 602; Board of Managers of Park Regent Condominium v Park Regent Unit Owners Assoc., 58 AD3d 589; Phelan v Huntington Tri-Vil. Little League, Inc.,
57 AD3d 503, 505). The defendant's contentions regarding discovery were
mere expressions of hope and speculation that a deposition of the
plaintiff might disclose relevant information sufficient to defeat the
motion (see Brewster v Five Towns Health Care Realty Corp. 59 AD3d 483; Lauriello v Gallotta, 59 AD3d 497; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621).

In response to Sibbio's prima facie demonstration of his entitlement to judgment as a matter of law (see Clark v Davis, 52 AD3d 639; Lewis v Boyce, 31 AD3d 395; Shafqat v Blackman, 16 AD3d 574; Batista v Mohabir, 291 AD2d 365), the plaintiffs submitted evidence sufficient to raise a triable issue of fact (see Andujar v Wylong, 53 AD3d 465). Additionally, the motion was premature since substantial discovery remained outstanding (see CPLR 3212[f]; Patterson v Brennan, 292 AD2d 582).

We affirm. Initially, a motion to dismiss or one for summary judgment may be stayed or denied pending further discovery (see
CPLR 3211 [d]; 3212 [f]). To obtain such relief, plaintiff was obliged
to provide some evidentiary basis for its claim that further discovery
would yield material evidence and also "demonstrate how further
discovery might reveal material facts in the movant's exclusive
knowledge" (Scofield v Trustees of Union Coll. in Town of Schenectady, 267 AD2d 651, 652 [1999]; see Zinter Handling, Inc. v Britton, 46 AD3d 998,
1001 [2007]). Here, plaintiff provides nothing beyond speculation that
further discovery would yield material evidence. Also, plaintiff could
have obtained any such evidence from other sources. Mohawk, for
example, is in the best position to explain why it altered the list of
specified dealers for SUNY Stony Brook. Plaintiff could also rely on
its own records to discover whether Cassin breached his duty of loyalty
(see Chemfab Corp. v Integrated Liner Tech., 263 AD2d 788, 790 [1999]). Thus, we are unpersuaded that further discovery is needed prior to deciding defendants' motion.

Turning to the first cause of action, we do not agree with
defendants that it fails to state a claim. Accepting the complaint's
allegations as true, the first claim sufficiently alleges that
defendants used wrongful or unlawful means to obtain a competitive
advantage over plaintiff and that plaintiff would have consummated a
contract with SUNY Stony Brook but for defendants' interference (see B-S Indus. Contrs. v Burns Bros. Contrs., 256 AD2d 963, 965 [1998])^[FN2].
Nor were defendants entitled to summary judgment on the first claim, as
the motion papers did not address their actions in any detail. Their
failure to meet their initial burden on a summary judgment motion
required denial (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [*3][1985]).

…

Plaintiff's remaining arguments can be briefly disposed of.
Although plaintiff's unfair competition claims may rest upon the
misappropriation of confidential information, there is no competent
evidence in the record to suggest that such a misappropriation occurred
(see Chemfab Corp. v Integrated Liner Tech., 263 AD2d at
790). As for the punitive damages claim, such was improperly stated as
a separate cause of action and was appropriately dismissed (see Martin v Columbia Greene Humane Socy., Inc., 17 AD3d 839, 841 [2005]; Pileckas v Trzaskos, 126 AD2d 926, 927 [1987], lv denied 70 NY2d 601 [1987]).