Court should not grant motions based on grounds not addressed in the papers

Patel v Sharma, 2019 NY Slip Op 00452 [2d Dept. 2019]

The Supreme Court should not have granted the defendant’s motion for summary judgment on a ground not raised in the defendant’s motion (see Singletary v Alhalal Rest., 163 AD3d 738Mew Equity, LLC v Sutton Land Servs., LLC, 144 AD3d 874, 877; Quizhpe v Luvin Constr., 70 AD3d 912, 914). “[O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court” (Matter of Pritchett, 128 AD3d 836, 837; see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430; Philogene v Duckett, 163 AD3d 1015). The plaintiff had no opportunity to address the issue regarding the allegedly defective summons, and this “lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process” (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54; see Frank M. Flower & Sons, Inc. v North Oyster Bay Baymen’s Assn, Inc., 150 AD3d 965, 966; Matter of Meighan v Ponte, 144 AD3d 917, 918).

Service requirements in OSC are jurisdictional in nature

Boucan NYC Café, LLC v 467 Rogers, LLC, 2019 NY Slip Op 00416 [2d Dept. 2019]

We agree with the defendant’s contention that the service requirements set forth in the order to show cause dated August 9, 2017, were jurisdictional in nature. The plaintiff’s undisputed failure to comply with these requirements by serving the order to show cause pursuant to CPLR 308(4), instead of CPLR 311-a, deprived the Supreme Court of jurisdiction to entertain the plaintiff’s order to show cause in the order dated August 16, 2017 (see Gonzalez v Haniff, 144 AD3d 1087). Contrary to the plaintiff’s contention, the defendant may challenge the validity of the order dated August 16, 2017, on the ground that the court was without jurisdiction to enter the order (see Board of Directors of Windsor Owners Corp. v Platt, 148 AD3d 645). Accordingly, the plaintiff’s motion to hold the defendant in contempt for failure to comply with the order dated August 16, 2017, should have been denied.

Stop denying with leave to renew

Corvino v Schineller, 2019 NY Slip Op 00259 [2d Dept. 2019]

The defendant’s contention that the plaintiff’s motion should have been denied without leave to renew is not properly before this Court. However, we note our concern that, where a motion for summary judgment has been made prematurely, granting leave to renew upon completion of discovery may only encourage the making of premature motions, resulting in successive motion practice and, in turn, successive appeals, thus increasing the burdens on this Court. Motion courts should therefore exercise their discretion with care in deciding whether to give advance permission to a movant to make a successive motion for summary judgment.

Amended complaint was the operative pleading

Delmaestro v Marlin, 2019 NY Slip Op 00260 [2d Dept. 2019]

As a threshold matter, the plaintiff is correct that the amended complaint, which was served as of right while the defendants’ renewed motion was pending (see CPLR 3025[a]; 3211[f]), superseded the original complaint and was the operative pleading in this action (see Taub v Schon, 148 AD3d 1200, 1201; D’Amico v Correctional Med. Care, Inc., 120 AD3d 956, 957). Nevertheless, that branch of the defendants’ renewed motion which sought dismissal of the cause of action alleging promissory estoppel was not rendered academic by the filing of the amended complaint, which was substantially similar to the original pleading, except that it omitted the cause of action for specific performance (see e.g. Sim v Farley Equip. Co. LLC, 138 AD3d 1228, 1228 n 1; Calcagno v Roberts, 134 AD3d 1292, 1292 n). The amended complaint did not substantively alter the original promissory estoppel cause of action, which was the only remaining cause of action being pursued by the plaintiff. Accordingly, under the circumstances of this case, any error by the Supreme Court in disregarding the amended complaint does not constitute grounds for reversal (see e.g. Sim v Farley Equip. Co. LLC, 138 AD3d at 1228 n 1; Calcagno v Roberts, 134 AD3d at 1292 n).

Individual assignment system

JPMorgan Chase Bank, N.A. v Caliguri, 2019 NY Slip Op 00262 [2d Dept. 2019]

22 NYCRR 202.3(a) provides for an individual assignment system which assigns the continuous supervision of each action and proceeding by a single judge. However,”[t]he Uniform Rules for Trial Courts do not deal with the issue of whether related cases should be assigned to the same Judge” (Matter of Morfesis v Wilk, 138 AD2d 244, 246). There is no requirement that related cases be heard by the same judge. Further, as the prior foreclosure action was no longer pending, there existed no “potential for conflicting rulings” (Appolino v Delorbe, 24 AD3d 252, 253; see Clearwater Realty Co. v Hernandez, 256 AD2d 100). Accordingly, it was not an improvident exercise of discretion for the Supreme Court to deny the defendant’s motion pursuant to 22 NYCRR 202.3(a) to transfer the action to the Justice who heard the prior foreclosure action.

SJ generally

Moscatiello v Wyde True Value Lbr. & Supply Corp., 2019 NY Slip Op 00269 [2d Dept. 2019]

The proponent of a summary judgment motion bears the burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of material issues of fact (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324). Only after this showing has been made does the burden shift to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material triable issues of fact (see id. at 324).


The plaintiff’s contention that Mid-Atlantic’s motion for summary judgment was untimely, and therefore should not have been considered by the Supreme Court, is without merit (see CPLR 2211; Lennard v Khan, 69 AD3d 812, 814; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561).

A motion is made when it is served.

Questioning on a matter ruled inadmissible and sanctions

Banks-Dalrymple v Chang, 2019 NY Slip Op 00367 [1st Dept. 2019]

Although the Court did not abuse its discretion in declaring a mistrial for defendant’s counsel’s violation of the court’s in limine ruling, we find that a curative instruction, together with a striking of the impermissible parts of the record, would have sufficed. Accordingly, having declared the mistrial, it was a proper exercise of the court’s discretion to sanction defendants’ counsel, for its prejudicial questioning of plaintiff on a matter ruled inadmissable (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1; Pickens v Castro, 55 AD3d 443, 444 [1st Dept 2008]). We, however, reduce the sanctions and direct that upon receipt of proof of payment to plaintiff’s experts, defendant’s counsel must reimburse plaintiff’s counsel within 10 days.

Obstfeld v Thermo Niton Analyzers, LLC, 2019 NY Slip Op 00609 [2d Dept. 2019]

Since the plaintiffs have raised arguments on this appeal that appear to be “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1[c][1]), the appeal may be frivolous (see Carbone v US Bank N.A., 156 AD3d 678, 680; Curet v DeKalb Realty, LLC, 127 AD3d 914, 916; Caplan v Tofel, 65 AD3d 1180, 1181-1182). Accordingly, we direct the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions in connection with this appeal should or should not be imposed on the plaintiffs.


Bank of Am., N.A. v Bittle, 2019 NY Slip Op 00086 [2d Dept. 2019]

Here, Nationstar relied on the affidavit of its employee, Michael Woods, who averred, in relevant part, that “the 90-day notices required by statute were mailed to [d]efendant by regular and certified mail to the last known mailing address and to the property address on January 3, 2013,” and that the letters “were sent in separate envelopes from any other mailing or notice.” However, the record contains a single 90-day notice, bearing the plaintiff’s letterhead and addressed to the defendant at the subject property, with no clear indication as to whether the mailing was made by registered or certified mail, or by first-class mail. Moreover, Woods—who is not an employee of the plaintiff—did not aver in his affidavit to having any familiarity with the plaintiff’s mailing practices and procedures. Under these circumstances, Nationstar failed to establish, prima facie, strict compliance with RPAPL 1304 (compare Wells Fargo Bank, NA v Mandrin, 160 AD3d at 1016, Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049, 1050, and Citimortgage, Inc. v Pappas, 147 AD3d 900, 901, with Citimortgage, Inc. v Banks, 155 AD3d 936, 937).

The bold is mine.


Wei Lin v Sang Kim, 2019 NY Slip Op 00161 [2d Dept. 2019]

In a medical malpractice action, a defendant moving for summary judgment has the burden of establishing, prima facie, either the absence of any departure from good and accepted medical practice, or that any departure was not a proximate cause of the plaintiff’s injuries (see Kelly v Rosca, 164 AD3d 888, 891; Barley v Bethpage Physical Therapy Assoc., P.C., 122 AD3d 784Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1044). The burden is not met if the defendant’s expert renders an opinion that is conclusory in nature or unsupported by competent evidence (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Bongiovanni v Cavagnuolo, 138 AD3d 12, 17; Barley v Bethpage Physical Therapy Assoc., P.C., 122 AD3d at 784; Duvidovich v George, 122 AD3d 666).

We agree with the Supreme Court’s determination denying the defendant’s motion for summary judgment dismissing the complaint, although on a different ground than that relied on by the court. In support of his motion, the defendant failed to establish, prima facie, that he did not depart from good and accepted medical practice, or that any departure was not a proximate cause of the injured plaintiff’s injuries. The defendant’s expert merely summarized the medical records and certain deposition testimony, and opined in a conclusory manner that the defendant’s treatment of the injured plaintiff did not represent a departure from good and accepted medical practice (see Kelly v Rosca, 164 AD3d at 891; Barley v Bethpage Physical Therapy Assoc., P.C., 122 AD3d at 784). Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiffs’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The bold is mine.

Sikorjak v City of New York, 2019 NY Slip Op 00157 [2d Dept. 2019]

 It was a provident exercise of discretion for the court to limit the testimony of the plaintiff’s expert to issues calling for professional or technical knowledge (see De Long v County of Erie, 60 NY2d 296, 307; Century Sur. Co. v All in One Roofing, LLC, 154 AD3d 803, 808; Kohler v Barker, 147 AD3d 1037, 1038; Galasso v 400 Exec. Blvd.LLC, 101 AD3d 677, 678). The court also providently exercised its discretion in sustaining an objection to improper opinion testimony by a fact witness (see Guzek v B & L Wholesale Supply, Inc., 151 AD3d 1662, 1664; LaPenta v Loca-Bik Ltee Transp., 238 AD2d 913, 914). 

Daniele v Pain Mgt. Ctr. of Long Is., 2019 NY Slip Op 00093 [2d Dept. 2019]

The Supreme Court also should not have allowed the plaintiff’s experts, Jason Brajer and Paul Edelson, to testify as expert witnesses in emergency medicine. “[W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Whether a particular witness is qualified to testify as an expert is ordinarily a discretionary determination (see de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517), which will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion (see id. at 517-518). Brajer was board-certified in anesthesiology and pain management. He did not testify that he had training in emergency medicine, and did not adequately explain how he was familiar with the standard of care in emergency medicine based upon his prior experience of being called to the emergency room to prepare patients for surgery, or evaluating urgent back pain (see Galluccio v Grossman, 161 AD3d 1049, 1052; cf. Ocasio-Gary v Lawrence Hosp., 69 AD3d 403, 405). Edelson, a pediatrician, had minimal experience in emergency medicine. More importantly, that experience, which consisted of moonlighting at a hospital for five hours per week in the late 1970s and early 1980s, was simply too remote in time to qualify him to testify as an expert in emergency medicine as of September 2010, the time of the treatment at issue in this case. Edelson otherwise failed to demonstrate that he possessed the specialized knowledge, training, or education that would have qualified him as an expert in this area (see Lavi v NYU Hosps. Ctr., 133 AD3d 830, 831; de Hernandez v Lutheran Med. Ctr., 46 AD3d at 517-518; Mustello v Berg, 44 AD3d at 1018-1019). Accordingly, the court should not have permitted their expert testimony.

The bold is mine.