premature and not premature

Estate of Bachman v Hong, 2019 NY Slip Op 00977 [1st Dept. 2019]

Although discovery had not yet been taken, the motion was not premature as to liability because defendant, as the driver, has knowledge of how the accident occurred and did not show any need for discovery on that issue (see Delgado v Martinez Family Auto, 113 AD3d 426, 427 [1st Dept 2014]; Johnson v Phillips, 261 AD2d 269, 270, 272 [1st Dept 1999]; CPLR 3212[f]).

On the other hand, plaintiff failed to meet her prima facie evidence on the serious injury issue because she neglected to submit admissible evidence supporting her allegation that she suffered a fractured finger and sternum (CPLR 3212[a];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Although plaintiff’s hospital records were submitted on reply, that did not provide defendant with any opportunity to submit medical evidence in opposition or to address whether the records supported the injuries alleged in the complaint. Further, the motion was premature because defendant had not received those documents or conducted any discovery [*2]on the serious injury issue before the motion was made (see Cruz v Skeritt, 140 AD3d 554, 555 [1st Dept 2016]; Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 103 [1st Dept 2006], lv denied 8 NY3d 804 [2007]).

Condition precedent

Jeffers v American Univ. of Antigua, 2019 NY Slip Op 00987 [1st Dept. 2019]

 Specifically, it is well settled that “a party to a contract cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition” (Kooleraire Serv. & Installation Corp. v Board of Educ. of City of N.Y., 28 NY2d 101, 106 [1971]; Fairway Prime Estate Mgt., LLC v First Am. Intl. Bank, 99 AD3d 554, 557 [1st Dept 2012]).

Certificate of readiness

McKiernan v Vaccaro, 2019 NY Slip Op 00267 [1st Dept. 2019]

“Pursuant to Uniform Rules for Trial Courts, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial” (Slovney v Nasso, 153 AD3d 962, 962; see 22 NYCRR 202.21[a], [b]; Furrukh v Forest Hills Hosp., 107 AD3d 668, 669). Here, the plaintiff’s certificate of readiness stated that significant discovery remained outstanding when the note of issue and certificate of readiness were filed. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity (see Slovney v Nasso, 153 AD3d at 962; Furrukh v Forest Hills Hosp., 107 AD3d at 669). Since the note of issue was a nullity, the plaintiff’s argument that the Supreme Court erred in permitting Mancuso to continue with discovery is without merit. Moreover, the plaintiff’s contention that counsel’s affirmation of good faith in support of Mancuso’s motion to vacate the note of issue was insufficient is without merit (see Suarez v Shapiro Family Realty Assoc., LLC, 149 AD3d 526, 527). Accordingly, we agree with the court’s determination to grant Mancuso’s motion to vacate the note of issue and to permit Mancuso to conduct certain discovery.

Mordekai v City of New York, 2019 NY Slip Op 00431 [2d Dept. 2019]

We agree with the Supreme Court’s denial of that branch of the plaintiff’s cross motion which was, in effect, to impose a sanction on the defendants by precluding them from relying upon certain evidence in support of their motion for summary judgment or introducing such evidence at trial. The plaintiff waived any objection to the adequacy and timeliness of the defendants’ disclosure of certain evidence by filing a note of issue and certificate of readiness stating that disclosure was complete and that there were no outstanding requests for disclosure (see Iscowitz v [*2]County of Suffolk, 54 AD3d 725Melcher v City of New York, 38 AD3d 376Simpson v City of New York, 10 AD3d 601). In any event, the plaintiff did not make a showing of willful and contumacious conduct on the part of the defendants, nor did the plaintiff demonstrate that he would be substantially prejudiced by the post-note of issue disclosure of the evidence (see Iscowitz v County of Suffolk, 54 AD3d at 725).

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.