[App Div 1st Dept]

Personal knowledge

Chekowsky v Windemere Owners, LLC, 2014 NY Slip Op 01139 [1st Dept. 2014]

While defendants' employee's affidavit in opposition stated that more than $55,000 had been spent on the improvements, the employee was not a person with knowledge of the facts, and her statement was unsupported by any admissible evidence, such as affidavits by the various vendors she claimed would testify to additional improvements at trial, and devoid of an explanation of why they are not now available (see Castro v New York Univ., 5 AD3d 135 [1st Dept 2004]; CPLR 3212[b]).

Defendants failed to show that they needed further discovery, especially since they are not [*2]seeking any records from plaintiff, and they had 17 months to search their own records (see Bailey v New York City Tr. Auth., 270 AD2d 156 [1st Dept 2000]; CPLR 3212[f]).

Emphasis mine

CPLR 3025 mere fact of exposure to greater liability not prejudicial

CPLR 3025

87 Chambers, LLC v 77 Reade, LLC, 2014 NY Slip Op 01123 [1st Dept. 2014]

Appellants' motion was timely filed and respondents have not shown that they would be prejudiced by granting appellants' leave to assert the new claims. Among other things, appellants are not prejudiced by the mere fact of exposure to potentially greater liability in the form of punitive damages (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]; Letterman v Reddington, 278 AD2d 868 [4th Dept 2000]).

Personal Jurisdiction waived

CPLR 3211(e)
CPLR 320

Deutsche Bank Natl. Trust Co. v Ned, 2014 NY Slip Op 01122 [1st Dept. 2014]

In this mortgage foreclosure action, the motion court properly denied defendant's motion to dismiss the complaint on the ground of lack of jurisdiction. Defendant waived the defense of lack of personal jurisdiction since she failed to assert it in her answer and in the two prior motions she made (see CPLR 320; Ohio Sav. Bank v Munsey, 34 AD3d 659 [2d Dept 2006]). Although defendant is correct that the evidence of her physical description rebuts the presumption of proper service since it does not match the description provided by the process server, the court was not required to direct a traverse hearing since defendant waived this defense prior to alerting the court to the discrepancies.

Emphasis mine.

Repudiation of coverage

See also State Farm Ins. Co. v. Domotor, 266 AD2d 219 [2nd Dept. 1999]

Matter of Kane v Fiduciary Ins. Co. of Am., 2014 NY Slip Op 00593 [1st Dept.]

The arbitral awards, rendered in compulsory arbitration, were not irrational or contrary to settled, and therefore should have been confirmed. Respondent insurer's disclaimer, based strictly upon primacy of coverage, was not so absolute or unequivocal as to constitute a repudiation of the policy (see Seward Park Hous. Corp. v Greater N.Y. Mut. Ins. Co., 43 AD3d 23, 30 [1st Dept 2007]). The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated (11 NYCRR 65-1.1, 65-24[c]).

Emphasis mine.

Police reports and liablity

Roman v Cabrera, 2014 NY Slip Op 00445 [1st Dept. 2014]

Nonetheless, plaintiffs opposed the motion solely on the basis of a notation in Trooper Rosado's report to the effect that "Cabrera swerved to avoid Mr. Lawrence's vehicle and in so doing lost control of her vehicle, striking Mr. Román . . . ." This police accident report is insufficient to raise an issue of fact since it recites hearsay and was prepared by an officer who had not observed the accident (see Singh v Stair, 106 AD3d 632 [1st Dept 2013]). Moreover, plaintiffs have not demonstrated an excuse for their failure to offer proof on the issue in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]).

Even if it were admissible, the police report would still be insufficient to raise a triable issue of fact. Liability may not be imposed on a party who merely furnishes the condition or occasion for the occurrence of the event, but was not one of its causes (see Sheehan v New York, 40 NY2d 496, 503 [1976]). The report would not have raised an inference that Lawrence's conduct caused the emergency condition created when his vehicle hit the median divider as he tried to avoid colliding with third unidentified car, which allegedly swerved into his lane (see Paulino v Guzman, 85 AD3d 631, 632 [1st Dept 2011]).

Emphasis mine.

CPLR 1015; 3212(a)

CPLR 1015(a)
CPLE 3212(a)

Torres v Zara Realty Holding Corp., 2014 NY Slip Op 00442 [1st Dept. 2014]

In this action for personal injuries allegedly sustained by plaintiff's decedent while he was working at defendant's premises as an assistant elevator mechanic, the note of issue was filed on March 3, 2009, and the decedent died of unrelated causes on June 13, 2009, resulting in an automatic stay of all proceedings until a proper substitution was made (see CPLR 1015[a]; Noriega v Presbyterian Hosp. in City of N.Y., 305 AD2d 220, 221 [1st Dept 2003]). Defendant moved for summary judgment on June 24, 2009, within 120 days after the note of issue was filed, but while the action was stayed. Thus, the order granting the motion on default was properly vacated as a nullity (see Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819, 820 [1st 1985]).

Decedent's daughter was substituted as party plaintiff on May 10, 2010, and defendant concededly had notice of the substitution as of August 17, 2010. Defendant did not attempt to renew its motion for summary judgment until October 28, 2010, more than 120 days after the filing of the note of issue, excluding the tolling period. Moreover, after the motion was automatically denied without prejudice due to defendant's failure to comply with the court rules of the trial part, defendant waited until May 3, 2011 to make the motion in accordance with the applicable rules. By that time, the motion was untimely under any view of the facts (see CPLR 3212[a]).

Defendant's proffered excuses for the delay in moving following substitution are insufficient to excuse its failure to remain apprised of the status of the case and comply with the applicable deadlines (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]).

Bold is mine.

3211(a)(1)(7)

3211(a)(1)
3211(a)(7)

Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 2014 NY Slip Op 00587 [1st Dept. 2014]

Since the record does not affirmatively establish a valid obligation to arbitrate the issues raised herein, we must examine Goldman's alternative argument seeking dismissal of the action. With regard to the fraud allegations, Goldman argues that plaintiff failed to state a cause of action because the element of reasonable reliance is precluded as a matter of law by the disclaimer and disclosure in the offering circulars. We do not find that such argument is procedurally precluded by the fact that "Goldman's motion was made under CPLR 3211(a)(7)." The concurring opinion incorrectly maintains that Goldman cannot rely on documentary evidence (the disclaimer and disclosure in the offering circulars) because a CPLR 3211(a)(7) motion is limited to a review of the pleadings.

The motion court examined the purported documentary evidence, albeit over plaintiff's objections, but concluded that it did not bar the fraud claims. Plaintiff, however, has abandoned such procedural argument by failing to raise it on appeal (see Matter of Raqiyb v Fischer, 82 AD3d 1432, 1433, n [3rd Dept 2011], citing Matter of Ifill v Fischer, 72 AD3d 1367, n [3rd Dept 2010]). Instead, in its opening paragraph of the argument section opposing Goldman's motion to dismiss the fraud claims, plaintiff simply comments:

"Goldman's argument on appeal strays far beyond addressing the sufficiency of the allegations. Instead, Goldman seeks to play on a field of disputed issues of fact. But this provides no basis for dismissing this Complaint. That is particularly the case here when this Complaint is based not just on well-pleaded allegations, but on inculpatory Goldman documents disclosed in prior proceedings [emphasis added]."

Thus, on this appeal, plaintiff does not claim that this Court is "procedurally" precluded from examining the documentary evidence at issue because Goldman moved to dismiss under CPLR 3211(a)(7). Rather, plaintiff appears to be arguing that the documentary evidence simply raises "disputed issues of fact," which, as plaintiff correctly asserts, is not enough for a dismissal under CPLR 3211(a)(7).

In any event, the concurrence's contention that this Court is limited to the pleadings, when reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), is not a completely accurate statement of the law. What the Court of Appeals has consistently said is that evidence in an affidavit used by a defendant to attack the sufficiency of a pleading "will seldom if ever warrant the relief [the defendant] seeks unless [such evidence] conclusively establishes that plaintiff has no cause of action" (Rovello v Orofino Realty Co, Inc, 40 NY2d 633, 636 [1976] [emphasis added]; see also Guggenheim v Ginzburg, 43 NY2d 268 [1977]).

A CPLR 3211(a)(7) motion may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action. As to the latter, the Court of Appeals has made clear that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim (see Rovello, 40 NY2d 633; Guggenheim, 43 NY2d 268; see also Board of Managers of Fairways at N. Hills Condominiums v Fairways at N. Hills, 150 AD2d 32 [2d Dept 1989]).^[FN4]

When documentary evidence is submitted by a defendant "the standard morphs from whether the plaintiff has stated a cause of action to whether it has one" (John R. Higgitt, CPLR 3211[A][7]: Demurrer or Merits-Testing Device?, 73 Albany Law Review 99, 110 [2009]). As alleged here, if the defendant's evidence establishes that the plaintiff has no cause of action (i.e., that a well-pleaded cognizable claim is flatly rejected by the documentary evidence), dismissal would be appropriate (see e.g. Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d 574 [2d Dept 2013]; Rabos v R & R Bagels & Bakery, Inc., 100 AD3d 849, 851—852 [2d Dept 2012]; Skillgames, LLC v Brody, 1 AD3d 247, 250 [1st Dept 2003]; Kliebert v McKoan, 228 AD2d 232 [1st Dept 1996], lv denied 89 NY2d 802 [1996]; Board of Managers of Fairways at N. Hills Condominiums, 150 AD2d 32).

Note the concurring opinion.

Bold is mine. Everything else is in original.

CPLR 2221(e)(2)

Fernandez v Moskowitz, 2014 NY Slip Op 00583 [1st Dept. 2014]

Plaintiff contends that our dismissal of the complaint was a "new fact" as considered in CPLR 2221(e)(2), and that he should have been allowed to renew the summary judgment motion to proffer the results of a new diagnostic test and expert's affidavit which, he believes, would probably have persuaded this Court to affirm Supreme Court's denial of summary judgment (CPLR 2221[e][2]). Plaintiff misconstrues the posture of the case. Because the motion court had denied defendants' summary judgment motion, plaintiff as the prevailing party was never entitled to seek renewal of that motion (see e.g. Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983] [where the successful party obtained the full relief sought, it has no ground for appeal [or renewal], even if that party disagrees with the particular findings, rationale or the opinion supporting the order below in its favor]). Moreover, judgment was entered on July 1, 2011, dismissing the complaint, and plaintiff's recourse was to seek to vacate our decision and judgment based on the existence of the new diagnostic test and expert's affidavit (CPLR 5015[a][2]).

The motion court properly denied plaintiff's motion to renew the earlier motion seeking renewal of the motion for summary judgment. There are no new facts submitted that would entitle him to renew a motion in which he had prevailed.

Emphasis mine.

Judicial Estoppel

Wells Fargo Bank N.A. v Webster Bus. Credit Corp., 2014 NY Slip Op 00412 [1st Dept. 2014]

Contrary to defendant's argument, plaintiffs' previous assertion of their own claim for contractual indemnification does not judicially estop them from denying that defendant is entitled to indemnification of attorneys' fees under the agreement. The doctrine of judicial estoppel " precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed'" (Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1st Dept 1998], lv dismissed 92 NY2d 962 [1998] [quoting Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435, 436 [2d Dept 1995]). As plaintiffs did not prevail on their contractual indemnification claim, the doctrine of judicial estoppel does not apply (see Kvest LLC v Cohen, 86 AD3d 481, 482 [1st Dept 2011]; Gale P. Elston, P.C. v Dubois, 18 AD3d 301, 303 [1st Dept 2005]).

Nor does plaintiffs' prior claim for contractual indemnification, standing alone, constitute a "judicial admission" that attorneys' fees are recoverable in inter-party disputes. On the contrary, plaintiffs' former construction of the agreement was a legal argument, and not a "fact" amenable to treatment as a "formal judicial admission" (GJF Constr., Inc. v Sirius Am. Ins. Co., 89 AD3d 622, 626 [1st Dept 2011]).

Emphasis is mine (the bolded portion only) (italics in original).

CPLR 3217(a)(1) untimely unilateral voluntary discontinuance

CPLR 3217(a)(1)

BDO USA, LLP v Phoenix Four, Inc., 2014 NY Slip Op 00410 [1st Dept. 2014]

The motion court erred in deeming defendants' motions withdrawn. Indeed, the parties never "stipulated" to discontinue BDO's action. Rather, BDO unilaterally filed a notice of voluntary discontinuance. This notice was untimely because BDO served it after defendants filed their motions to dismiss (see CPLR 3217[a][1]; Polgar v Focacci, 2 Misc 3d 836, 839-840 [Sup Ct, NY County 2003]; David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3217:8 ["[t]he defendant who has moved to dismiss under CPLR 3211 has already done as much in the litigation (and more) than if she had merely answered the complaint"]). Indeed, if a motion to dismiss is not a "responsive pleading" within the meaning of CPLR 3217(a)(1), a plaintiff would be able to freely discontinue its action without prejudice solely to avoid a potentially adverse decision on a pending dismissal motion. This Court has made clear that such conduct is improper (see Rosenfeld v Renika Pty. Ltd., 84 AD3d 703 [1st Dept 2011]; McMahan v McMahan, 62 AD3d 619, 620 [1st Dept 2009]). Thus, BDO's notice was ineffective and a nullity, and the motion court should not have deemed defendants' motions withdrawn (see Citidress II Corp. v Hinshaw & Culbertson LLP, 59 AD3d 210, 211 [1st Dept 2009]; Tutt v Tutt, 61 AD3d 967 [2d Dept 2009]).

That BDO served its notice of discontinuance in an attempt to circumvent the Administrative Judge's order denying its request to have its action assigned to the Commercial Division may be a valid basis for granting a discontinuance with prejudice (see e.g. Rosenfeld, 84 AD3d at 703; McMahan, 62 AD3d at 619; NBN Broadcasting v Sheridan Broadcasting Networks, 240 AD2d 319 [1st Dept 1997]; Hirschfeld v Stahl, 242 AD2d 214 [1st Dept 1997]). However, given the unusual procedural history that led to the commencement of this action, we decline to discontinue the action with prejudice. Specifically, this action arose from defendant SRC's failure to properly notify this Court of the settlement the parties had reached in the contribution action before the mediator. Indeed, although the parties had reached a settlement, and the mediator specifically directed the parties to inform this Court of the settlement, SRC unilaterally took the position that the settlement was not effective and that the appeal should continue. As a result, this Court dismissed the contribution action before the parties finalized a [*5]written agreement, thus precluding BDO from enforcing the oral agreement (see BDO Seidman LLP, 92 AD3d 426; BDO Seidman LLP, 70 AD3d 556).

Because the motion court deemed Phoenix's motion to dismiss withdrawn without having considered its merit, we remand the action for further proceedings, including consideration of the motion.

Empahsis is mine.