Category: [App Div 1st Dept]

Contracts, Policies, and Stipulations

Silber v New York Life Ins. Co., 2012 NY Slip Op 00816 (1st Dept., 2012)

For the reasons set forth below, we agree with the motion court that there was no "meeting of the minds" constituting the formation of a contract between the parties. It is axiomatic that a party seeking to recover under a breach of contract theory must prove that a binding agreement was made as to all essential terms (Paz v Singer Co., 151 AD2d 234, 235 [1989]). Courts look to the basic elements of the offer and the acceptance to determine whether there is an objective meeting of the minds sufficient to give rise to a binding and enforceable contract (Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589 [1999]). An agreement must have sufficiently definite terms and the parties must express their assent to those terms (id.).

In this case, plaintiff claims that the parties entered into an oral agreement, which was then confirmed in the May 29 letter from defendant. This contention is directly refuted by plaintiff's June 16 letter, in which he attempts to negotiate terms related to his employment and reinstatement. Plaintiff's claim that there would be no point in "moving forward" without resolving one of these terms indicates that it is a material term. Thus, plaintiff's own correspondence clearly indicates that material terms had not been agreed upon. Plaintiff's failure to show that the parties agreed to definite terms is fatal to his claim of a prior oral agreement.

Thus, as defendant asserts, the May 29 letter was merely an offer that plaintiff did not accept, and indeed rejected. " It is a fundamental principle of contract law that a valid acceptance must comply with the terms of the offer'" (Lamanna v Wing Yuen Realty, 283 AD2d 165, 166 [2001], lv denied 96 NY2d 719 [2001], quoting Roer v Cross County Med. Ctr. Corp., 83 AD2d 861 [1981]). Where "the offer specifies the … mode of acceptance, an acceptance … in any other manner[ ] is wholly nugatory and ineffectual" (Rochester Home Equity v Guenette, 6 AD3d 1119, 1120 [2004] [internal quotation marks and citation omitted]). Furthermore, a purported acceptance that is "qualified with conditions" is a rejection of the offer (Lamanna, 283 AD2d at 166 [2001] [internal quotation marks omitted]; see Homayouni v Banque Paribas, 241 [*4]AD2d 375, 376 [1997] ["whenever a purported acceptance is even slightly at variance with the terms of an offer, the qualified response operates as a rejection and termination of … the initially offered terms"]).

Defendant's May 29 letter specified the manner of acceptance by providing, "If you are in agreement with the terms set forth in this letter, please sign below and return a copy of this letter to me." Plaintiff concedes that he did not return a signed copy of the May 29 letter as required in order to accept defendant's offer. Nor did he indicate his acceptance by complying with any of the terms set forth in the letter. Plaintiff did not resign, and his June 16 letter indicates that he had not closed on the sale of his life settlement business.

Not only did plaintiff fail to accept defendant's offer, his June 16 letter specifically rejected the May 29 offer. As discussed above, plaintiff's letter is an attempt to further negotiate the terms of his employment or reinstatement. The letter specifically conditions his agreement on the resolution of certain outstanding employment/reinstatement issues. As such, the June 16 letter was a rejection of defendant's May 29 offer.

Even were we to deem plaintiff's June 16 letter an acceptance, plaintiff received defendant's revocation of the May 29 offer prior to acceptance. Revocation is effective at the moment that the offeree receives it, so long as the offer has not yet been accepted (see Morton's of Chicago/Great Neck v Crab House, 297 AD2d 335, 337 [2002]; Buchbinder Tunick & Co. v Manhattan Natl. Life Ins. Co., 219 AD2d 463, 466 [1995]). Here, the June 12 letter notifying plaintiff of his impending termination, which was sent to plaintiff by overnight mail and received on June 13, constituted a revocation of the offer.

Since plaintiff's promissory estoppel claim was not pleaded as a cause of action in the complaint, the motion court correctly declined to address it (see Moscato v City of New York [Parks Dept.], 183 AD2d 599 [1992]). We have considered plaintiff's remaining contentions and find them unavailing.

Atlantic Aviation Invs. LLC v MatlinPatterson Global Advisers LLC, 2012 NY Slip Op 00840 (1st Dept., 2012)

Under the plain language of the parties' Memorandum of Understanding (MOU) and the embedded Make-Whole Agreement, nonparty VarigLog was an "affiliate" of Volo, an indirect wholly-owned subsidiary of the MP Funds. The sale of the shares at issue was an "Exit," as expressly defined in the MOU. Under the Make-Whole Agreement, Volo and the MP Funds are obligated to ratably share with plaintiff the funds received by VarigLog, Volo's affiliate, in connection with the sale of shares.

We find that the parties' agreements are unambiguous. Thus, there is no need to resort to extrinsic evidence to discern their meaning (see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 278 [2005]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162-163 [1990]). This is so regardless of whether the Make-Whole Agreement is carved out from the MOU's merger clause. Although the parties clearly intended for the Make-Whole Agreement to be an interim arrangement, to be supplanted by a "definitive final agreement" upon the Second Closing, it is nonetheless facially complete and contains all of the essential terms of an enforceable contract.

Randall's Is. Aquatic Leisure, LLC v City of New York, 2012 NY Slip Op 00843 (1st Dept., 2012)

Defendant New York City Economic Development Corporation (EDC) and plaintiffs Aquatic Development Group, Inc. (ADG) and Recreation Development, Inc. (RDI) are not signatories to the "Waterpark Concession Agreement" between plaintiff Randall's Island Aquatic Leisure, LLC (RIAL) and the City (through the Department of Parks and Recreation), which governs this dispute. Thus, ADG and RDI are not proper plaintiffs, and EDC is not a proper defendant, which alone is a sufficient ground on which to dismiss the complaint as against it. There can be no breach of contract claim against a non-signatory to the contract (Nuevo El Barrio Rehabilitación de Vivienda y Economía, Inc. v Moreight Realty Corp., 87 AD3d 465, 467 [2011]). There can be no claim of breach of the implied covenant of good faith and fair dealing without a contract (American-European Art Assoc. v Trend Galleries, 227 AD2d 170, 171 [1996]). And there can be no quasi-contract claim against a third-party non-signatory to a contract that covers the subject matter of the claim (Bellino Schwartz Padob Adv. v Solaris Mktg. Group, 222 AD2d 313, 313 [1995]).

Flusserova v Schnabel, 2012 NY Slip Op 00844 (1st Dept., 2012)

In opposition to defendants' prima facie showing that plaintiff released her claims against them, plaintiff failed to present any evidence that the release she signed was not "fairly and knowingly made" (see Johnson v Lebanese Am. Univ., 84 AD3d 427, 430 [2011] [internal quotation marks and citations omitted]). Plaintiff's claims that as a Czech immigrant with limited English she was taken advantage of by defendants lack merit in any event. According to her own testimony, taken in English in the absence of an interpreter, English is only one of several languages plaintiff speaks; she has written college-level papers in English, translated English for Czech speakers, and communicated with her coworkers and her boyfriend in English. In addition, plaintiff testified that she read the release and did not understand it, but she made no [*2]effort to have someone read and explain it to her before signing it (see Shklovskiy v Khan, 273 AD2d 371 [2000]). Accordingly, her claim that she believed she was signing a receipt for the money she was paid does not avail her.

McFarland v Opera Owners, Inc., 2012 NY Slip Op 00729 (1st Dept., 2012)

The court properly dismissed the fraud claim as barred by the merger clause, "as is" clause, and other disclaimers (see Rivietz v Wolohojian, 38 AD3d 301 [2007]). Moreover, plaintiffs' allegations of defendant's intent to breach the contract are insufficient to state a cause of action for fraud (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]; Board of Mgrs. of the Chelsea 19 Condominium v Chelsea 19 Assoc., 73 AD3d 581, 582 [2010]).

Movado Group, Inc. v Mozaffarian, 2012 NY Slip Op 00732 (1st Dept., 2012)

Defendants signed a credit agreement in which they expressly acknowledged receipt of, and agreed to be bound by, terms and conditions contained in an extrinsic document, which defendants neither read nor requested a copy to read. After the credit application was approved, defendants saw, for the first time, the terms and conditions, which contained a New York forum selection clause.

Plaintiff proved by a preponderance of the evidence (see Matter of Pickman Brokerage [Bevona], 184 AD2d 226, 226-227 [1992]), that the terms and conditions of the extrinsic document were incorporated into the credit agreement, and that defendants' acknowledged receipt and agreed to be bound by the same. The credit agreement, which identified the terms and conditions as those contained on each invoice, was sufficient to put defendants on notice that there was an additional document of legal import to the contract they were executing (see Shark Information Servs. Corp. v Crum & Forster Commercial Ins., 222 AD2d 251, 252 [1995]; see also American Dredging Co. v Plaza Petroleum, 799 F Supp 1335, 1338 [ED NY 1992], vacated in part on other grounds, 845 F Supp 91 [ED NY 1993]). Defendants' decision not to inquire as to the terms and conditions is one by which they are bound (see Sorenson v Bridge Capital Corp., 52 AD3d 265, 266 [2008], lv dismissed 12 NY3d 748 [2009]; see also Hotel 71 Mezz Lender LLC v Falor, 64 AD3d 430, 430 [2009] [a signer's duty to read and understand that which he signs is not "diminished merely because []he was provided with only a [portion of that document]").

The parties' dispute is not, as found by the lower court, governed by UCC 2-207(1)-(2)(b), which provides that, between merchants, where there is an "expression of acceptance or a written confirmation . . . [even if it] states terms additional to or different from those offered or agreed upon . . . [the additional or different terms] become part of the contract unless . . . they materially alter it" (id.). Here, the forum selection clause was not an "additional [*2]or different term" added to the contract, nor was it a confirmatory writing; rather, it was one of the terms and conditions incorporated by reference into the contract at its inception (see Guerra v Astoria Generating Co., L.P., 8 AD3d 617, 618 [2004]). Neither of the issues generally decided pursuant to UCC 2-207 are at issue here (see e.g. K.I.C. Chems., Inc. v ADCO Chem. Co., 1996 US Dist LEXIS 3244, at *10 [SD NY 1996] ["a classic battle of the forms'"]; Hugo Boss Fashions v Sam's Eur. Tailoring, 293 AD2d 296, 297 [2002] [a written alteration to an oral agreement]).

Cari, LLC v 415 Greenwich Fee Owner, LLC, 2012 NY Slip Op 00652 (1st Dept., 2012)

The contracts' termination provision provided that plaintiff could cancel the agreement for any reason and obtain the return of its deposit with interest, so long as it provided written notice to defendant sponsor no later than 10 days before closing. The court correctly determined that the termination provision rendered the contracts unenforceable for lack of mutual consideration (see Dorman v Cohen, 66 AD2d 411, 415, 418 [1979]). The obligation to provide written notice of termination does not constitute consideration where, as here, termination occurs immediately upon notice, and not after some specified period of time (see Allen v WestPoint-Pepperell, Inc., 1996 WL 2004, *3 n 5, 1996 US Dist LEXIS 6, *8 n 5 [SD NY 1996]; cf. Dorman, 66 AD2d at 419, citing McCall Co. v Wright, 133 App Div 62, 68 [1909], affd 198 NY 143 [1910]). The termination provision is enforceable and cannot be severed, even though it renders the contracts void (see Ying-Qi Yang v Shew-Foo Chin, 42 AD3d 320 [2007], lv denied 9 NY3d 812 [2007]). Plaintiff's promissory estoppel claim fails because it does not allege "a duty independent of the [contracts]" (Celle v Barclays Bank P.L.C., 48 AD3d 301, 303 [2008]).

The court properly denied leave to file a second amended complaint, where the proposed amendment "suffers from the same fatal deficiency as the original claims" — namely, the lack of [*2]mutual consideration ("J. Doe No. 1" v CBS Broadcasting Inc., 24 AD3d 215, 216 [2005]).

Matter of Matter of Rivera v Amica Mut. Ins. Co., 2012 NY Slip Op 00472 (1st Dept., 2012)

In Butler v New York Cent. Mut. Fire Ins. Co. (274 AD2d 924 [2000]), the Third Department held that whether the term "insured," as used in an identical Condition 6 of the SUM Endorsement, "refers to each independent insured" or "a cumulative grouping of all who qualify as insureds" was ambiguous, and should be construed against the insurer (id. at 925-26). However, in this case, Condition 6 cannot be viewed as ambiguous because such provision refers to "[t]he SUM limit shown on the Declarations," and the Declarations clearly set forth a "per accident" limit (see Matter of Automobile Ins. Co. Of Hartford v Ray, 51 AD3d 788, 790 [2008]; Matter of Government Empls. Ins. Co. v Young, 39 AD3d 751, 752-53 [2007]; Matter of Graphic Arts Mut. Ins. Co. [Dunham], 303 AD2d 1038, 1038-39 [2003]). Petitioners' piecemeal view of Condition 6 runs afoul of the principle that "[w]hen interpreting a contract, we must consider the entire writing and not view particular words in isolation" (Wachter v Kim, 82 AD3d 658, 661 [2011]).

Matter of Matter of Allstate Ins. Co. v LeGrand, 2012 NY Slip Op 00242 (1st Dept., 2012)

The failure to move to stay arbitration within the 20-day period specified in CPLR 7503(c) generally "constitutes a bar to judicial intrusion into arbitration proceedings" (Aetna Life & Cas. Co. v Stekardis, 34 NY2d 182, 184 [1974]; see Matter of Spychalski [Continental Ins. Cos.], 45 NY2d 847 [1978]). However, a motion to stay arbitration may be entertained outside the 20-day period when "its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with" (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 266 [1982]).

It is undisputed that the subject accident occurred while the insured was driving a rental car in Mexico. The insured's automobile insurance policy provided benefits for accidents that occurred within the State of New York, "the United States, its territories or possessions, or Canada." Since the policy did not provide for coverage in the geographic area where the accident occurred, it cannot be said that the parties ever agreed to arbitrate this claim (see Matter of Allstate Ins. Co. (Richards), 178 AD2d 142 [1991], lv denied 79 NY2d 756 [1992]; cf. Matter of Fiveco, Inc. v Haber, 11 NY3d 140 [2008]).

Thor Props., LLC v Chetrit Group LLC, 2012 NY Slip Op 00112 (1st Dept., 2012)

In this lawsuit, plaintiff claims that it is entitled to the third payment of $6.25 million, because Komar willfully failed to close thereby causing the failure of the condition precedent and consequently depriving plaintiff of its right to the final payment. Plaintiff cites the "prevention" or "hindrance" doctrine whereby a "defendant cannot rely on the condition precedent to prevent recovery where the non-performance of the condition was caused or consented to by itself" (O'Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50, 56 [1939]; see also Arc Elec. Constr. Co. v Fuller Co., 24 NY2d 99, 103-04 [1969]). However, the prevention doctrine, a variant of the implied covenant of good faith and fair dealing, is only applicable when it is consistent with the intent of the parties to the agreement (see HGCD Retail Servs., LLC v 44-45 Broadway Realty Co., 37 AD3d 43, 53 [2006]). Here, the parties' settlement agreement clearly provided that the first payment was completely nonrefundable, the second payment was refundable if title failed to close through no fault of Komar, and plaintiff only became entitled to the third payment if title closed or an assignment occurred. Neither happened. Accordingly, plaintiff never became entitled to the third payment.

Plaintiff's argument that the parties incorporated the language concerning Komar's purposeful default from section B(i) into section B(ii) governing the third payment is contrary to the terms of the agreement. The parties clearly were capable of expressing the circumstances under which the right to payment vested. Had the parties meant to entitle plaintiff to the funds discussed in section B(ii) upon Komar's default, they certainly were capable of crafting language to that effect.

In addition, plaintiff argues that, regardless of the language in the settlement agreement, under the prevention doctrine, defendant cannot rely on the failure to close as an excuse not to [*3]pay plaintiff, because defendant is responsible for that failure. This argument misses the mark. By leaving out the words "except if title fails to close for any reason other than Komar's default" from section B(ii), the parties in essence contracted around the prevention doctrine. Thus, the parties considered the possibility of default and accorded liability (to defendants) for only one half of the $12.5 million. Imposition of the prevention doctrine to award the full $12.5 million to plaintiff would be inconsistent with a plain reading of the agreement.

The motion court also properly dismissed defendants' counterclaim for rescission of contract based on mutual mistake. To void a contract for mistake, the mistake must be mutual, substantial and must exist at the time the parties enter into the contract (see 260/261 Madison Equities Corp. v 260 Operating, 281 AD2d 237 [2001]). This Court previously found that there was neither a prior agreement with the relevant municipality limiting development, nor any guarantee that development would be permitted (Diplomat Props., 72 AD3d 596). Because it was always uncertain whether the City would permit or deny further development of the property, any assumption about the ability to develop property could not have existed at the time the parties entered into the agreement.

A party will not be relieved of its contractual obligations on the basis of an intervening contingency when it would have been reasonable to provide for such contingency in the contract (see Kel Kim Corp. v Central Mkts., 70 NY2d 900 [1987]; P.K. Dev. v Elvem Dev. Corp., 226 AD2d 200 [1996]). The ability to secure favorable zoning rulings is a well known risk in any property development project, and if expansion of the property was the key to profitability, as defendants claim, they should have explicitly handled that contingency in the settlement agreement.

Options Group, Inc. v Vyas, 2012 NY Slip Op 00038 (1st Dept., 2012)

The record evidence establishes definitively that the June 8, 2009 e-mail that plaintiff contends was defendant's acceptance of its settlement offer did not result in a preliminary agreement that embodied all the essential terms of the agreement between the parties (see Williamson v Delsener, 59 AD3d 291 [2009]). In any event, this alleged settlement agreement was superseded by a formal settlement agreement drafted by plaintiff and signed by defendant, which contained additional terms and specifically provided that it cancelled all preceding agreements (see e.g. Olivo v The City of New York, 2010 WL 3200073, 2010 US Dist LEXIS 81951 [SD NY 2010]). Even if plaintiff never formally executed the settlement agreement it [*2]proffered to defendant, the record demonstrates that both parties intended to be bound by the agreement, and it is therefore enforceable (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369 [2005]; Kowalchuk v Stroup, 61 AD3d 118, 125 [2009]).

Ayers v Ayers, 2012 NY Slip Op 00920 (2nd Dept, 2012)

A stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation (see Rainbow v Swisher, 72 NY2d 106; De Luca v De Luca, 300 AD2d 342; Girardin v Girardin, 281 AD2d 457). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v Slatt, 64 NY2d 966; see also De Luca v De Luca, 300 AD2d at 342). A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning (see Cohen-Davidson v Davidson, 291 AD2d 474, 475). Whether a writing is ambiguous is a matter of law for the court, and the proper inquiry is " whether the agreement on its face is reasonably susceptible of more than one interpretation'" (Clark v Clark, 33 AD3d 836, 837, quoting Chimart Assoc. v Paul, 66 NY2d 570, 573). In making this determination, the court also should examine the entire contract and consider the relation of the parties and the circumstances under which the contract was executed (see Clark v Clark, 33 AD3d at 837-838). Applying these principles herein, it is clear that the parties did not intend for child support payments to be included as part of "income and assets." Indeed, there is no language in the Stipulation which supports the defendant's determination that child support payments should be added to the plaintiff's income and deducted from his income. Nor can the plaintiff's alleged overpayments be deemed voluntary (cf. Matter of Hang Kwok v Xiao Yan Zhang, 35 AD3d 467).

Maser Consulting, P.A. v Viola Park Realty, LLC, 2012 NY Slip Op 00498 (2nd Dept., 2012)

"The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent" (Greenfield v Philles Records, 98 NY2d 562, 569). "Where . . . the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" (Rainbow v Swisher, 72 NY2d 106, 109; see Beal Sav. Bank v Sommer, 8 NY3d 318, 324; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475; Etzion v Etzion, 84 AD3d 1015, 1017). "The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court" (Franklin Apt. Assoc., Inc. v Westbrook Tenants Corp., 43 AD3d 860, 861). "The court's role is limited to interpretation and enforcement of the terms agreed to by the parties, and the court may not rewrite the contract or impose additional terms which the parties failed to insert" (131 Heartland Blvd. Corp. v C.J. Jon Corp., 82 AD3d 1188, 1189; see Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173, 182). Extrinsic evidence will be considered [*2]only if the contract is deemed ambiguous (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 163; Quality King Distrib., Inc. v E & M ESR, Inc., 36 AD3d 780, 782).

3211

County of Suffolk v MHC Greenwood Vil., LLC, 2012 NY Slip Op 00174 (2nd Dept., 2012)

"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Sokol v Leader, 74 AD3d 1180, 1180-1181; see Guggenheimer v Ginzburg, 43 NY2d 268, 275). "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Sokol v Leader, 74 AD3d at 1181 [internal quotation marks omitted]; see Nonnon v City of New York, 9 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88). " Whether a plaintiff can ultimately establish its allegations is not part of the calculus'" (Sokol v Leader, 74 AD3d at 1181, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19). "A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)" (Sokol v Leader, 74 AD3d at 1181; see CPLR 3211[c]). "If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'" (Sokol v Leader, 74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275). "Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" (Sokol v Leader, 74 AD3d at 1182 [internal quotation marks omitted]; see Lawrence v Graubard Miller, 11 NY3d 588, 595; Rovello v Orofino Realty Co., 40 NY2d 633, 636). "Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it'" (Sokol v Leader, 74 AD3d at 1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275).

Here, the evidence submitted by the defendants did not demonstrate that any fact alleged in the complaint was undisputedly "not a fact at all" (see Guggenheimer v Ginzburg, 43 NY2d at 275; Sokol v Leader, 74 AD3d at 1182). Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

Makris v Darus-Salaam Masjid, N.Y., Inc., 2012 NY Slip Op 00340 (2nd Dept., 2012)

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Fishberger v Voss, 51 AD3d 627, 628). "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is [*2]barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" (Mendelovitz v Cohen, 37 AD3d 670, 670; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326).

Contrary to Tower's contention, the Supreme Court properly denied its motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). Tower failed to carry its burden of demonstrating that the faulty workmanship exclusion applies in this particular case, and that the exclusion is subject to no other reasonable interpretation than the one offered by it (see Cragg v Allstate Indem. Corp., 17 NY3d 118, 122; Insurance Co. of Greater N.Y. v Clermont Armory, LLC, 84 AD3d 1168, 1170; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100, 104-106). Consequently, Tower failed to utterly refute the plaintiffs' allegation that Tower wrongfully denied their claim or to establish that their allegation was "not a fact at all" (Guggenheimer v Ginzburg, 43 NY2d at 275; see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997).

Conniff v 32 Gramercy Park Owners Corp., 2012 NY Slip Op 00253 (1st Dept., 2012)

The dismissal should have been without prejudice because the court dismissed the complaint upon plaintiff's default in failing to oppose the motion to dismiss (see Hernandez v St. Barnabas Hosp., __ AD3d __, 2011 NY Slip Op 7722 [2011]; Aguilar v Jacoby, 34 AD3d 706, 708 [2006]). The Court did not address the merits of the motion.

Kaplan v Roberts, 2012 NY Slip Op 00492 (2nd Dept., 2012)

At the outset, although the Supreme Court did not give "adequate notice to the parties" that it would treat the defendant's motion as one for summary judgment (CPLR 3211[c]), where, as here, a specific request for summary judgment was made and the parties " deliberately chart[ed] a summary judgment course'" (Mihlovan v Grozavu, 72 NY2d 506, 508, quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320), the court was authorized to treat Equinox's motion as one for summary judgment (see Burnside 711, LLC v Nassau Regional Off-Track Betting Corp., 67 AD3d 718, 720).

Furthermore, the Supreme Court should have granted that branch of Equinox's motion which was pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing the fourth cause of action in the third-party complaint, which sought to recover damages for breach of contract. When the parties' intent to be bound by a contractual obligation "is determinable by written agreements, the question is one of law," which can be resolved by the court on a motion for summary judgment (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291; see ADCO Elec. Corp. v HRH Constr., LLC, 63 AD3d 653, 654; German Masonic Home Corp. v DeBuono, 295 AD2d 312, 313). "A question of fact arises as to the parties' intent to enter into an enforceable obligation [o]nly where the intent must be determined by disputed evidence or inferences outside the written words of the instrument"' (ADCO Elec. Corp. v HRH Constr., LLC, 63 AD3d at 654, quoting Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 291).

Here, even assuming that the "member policies" constituted binding contracts between Equinox and each of its individual members, Equinox established, prima facie, that the provision therein concerning use of the facility by children was clear and unambiguous, and did not create any obligation on the part of Equinox to ensure that Roberts would be protected against any and all dangers potentially posed by another member's failure to properly supervise his or her children (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 292; German Masonic Home Corp. v DeBuono, 295 AD2d at 313; Berghold v Kirschenbaum, 287 AD2d 673, 673). In opposition, Roberts failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Equinox's motion which was for summary judgment dismissing the fourth cause of action in the third-party complaint.

The Supreme Court also should have granted that branch of Equinox's motion which was pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing the fifth cause of action in the third-party complaint, which sought to recover damages for negligence. A property owner, or one in possession or control of property, "has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" (Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d 946, 947; see Millan v AMF Bowling Ctrs., Inc., 38 AD3d 860, 860-861). This duty arises when there is an ability and an opportunity to control such conduct, and an awareness of the need to do so (see Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt. Co., 2 AD3d 590, 591; Cutrone v Monarch Holding Corp., 299 AD2d 388, 389). In support of this branch of its motion, Equinox submitted evidence demonstrating, prima facie, that it did not have the ability and opportunity to control the conduct at issue through the exercise of reasonable measures, and that it had no awareness of the need to control the conduct of the child (see Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt. Co., 2 AD3d at 591; Lazar v TJX Cos., 1 AD3d 319, 319). In opposition, Roberts failed to raise a triable issue of fact (see Hillen v Queens [*3]Long Is. Med. Group, P.C., 57 AD3d at 947; Victor C. v Lazo, 30 AD3d 365, 367). Accordingly, the Supreme Court should have granted that branch of Equinox's motion which was for summary judgment dismissing the fifth cause of action in the third-party complaint.

Contrary to the Supreme Court's determination, there is no basis to believe that facts necessary to properly oppose the motion for summary judgment would be uncovered through disclosure (see Gabrielli Truck Sales v Reali, 258 AD2d 437, 438; Glassman v Catli, 111 AD2d 744, 745).

Henderson v Kingsbrook Jewish Med. Ctr., 2012 NY Slip Op 00334 (2nd Dept., 2012)

In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88; see Nonnon v City of New York, 9 NY3d 825, 827). In addition, the pleading is to be "afforded a liberal construction" (Sarva v Self Help Community Servs., Inc., 73 AD3d 1155, 1155).

Here, the complaint states a cause of action alleging a violation of the plaintiffs' right of sepulcher, since the facts stated therein allege that the defendant interfered with the plaintiffs' "absolute right to the immediate possession of a decedent's body for preservation and burial" (Melfi v Mount Sinai Hosp., 64 AD3d 26, 31). Although the delay in releasing the decedent's body was not inordinate and may ultimately be determined to have been reasonable and proper under all of the circumstances, "[w]hether [the] plaintiff can ultimately establish [his] allegations is not part of the calculus in determining a motion to dismiss [made pursuant to CPLR 3211(a)(7)]" (ECBI, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1111).

Fleyshman v Suckle & Schlesinger, PLLC, 2012 NY Slip Op 00176 (2nd Dept., 2012)

Moreover, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged a violation of Judiciary Law § 487. Even as amplified by the plaintiff's affidavit, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted "with intent to deceive the court or any party" (Judiciary Law § 487[1]; see Jaroslawicz v Cohen, 12 AD3d 160, 160-161). Further, the plaintiff's allegation that the defendants "willfully delayed [her] recovery with a view to their own ends and benefit" is a bare legal conclusion, "which is not entitled to the presumption of truth normally afforded to the allegations of a complaint" (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969; see Judiciary Law § 487[2]).

CPLR 3212 and its variations

Cabrera v New York City Dept. of Educ., 2012 NY Slip Op 00834 (1st Dept., 2012)

Defendant Department of Education (DOE) is not entitled to summary judgment because there is sufficient evidence in the record to raise a question of fact as to whether it knew of a recurring dangerous condition in the fence and routinely left it unaddressed (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107 [2003]) or whether it undertook repairs and performed them negligently (see e.g. Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226-227 [2002]).

TrizecHahn, Inc. v Timbil Chiller Maintenance Corp., 2012 NY Slip Op 00712 (1st Dept., 2012)

Moreover, although Timbil submitted, in reply, affidavits from two servicemen who said they performed an overspeed trip test on November 8, 2000, a movant may not "remedy a fundamental deficiency in the moving papers by submitting evidentiary material with the reply" (Ford v Weishaus, 86 AD3d 421, 422 [2011] [internal quotation marks and citation omitted]).

Sangare v Edwards, 2012 NY Slip Op 00290 (1st Dept., 2012)

Plaintiff commenced an action alleging assault and battery against Edwards, and negligence against Dermer, contending that Dermer knew or should have known of Edwards's violent tendencies. Dermer amended its answer to include a workers' compensation defense, asserting that as a special employee of Dermer, plaintiff's sole and exclusive remedy was workers' compensation. Dermer did not otherwise raise or pursue the workers' compensation issue during the course of the litigation.

Following discovery, by order to show cause, Dermer moved to refer the matter to the Workers' Compensation Board (WCB) for a determination as to whether plaintiff was the special employee of Dermer, and to stay the proceedings pending such determination. Plaintiff opposed the motion, arguing, inter alia, that the motion was untimely, and, in any event, that plaintiff was the employee of Soho, not Dermer.

The court denied the motion, noting that it was "not obligated in all cases to defer to the WCB's primary jurisdiction by referring employment issues to the WCB." The court declined to [*2]reach the merits of Dermer's status as a special employer, since the issue was not before it, and the time to make a summary judgment motion had expired. The court stated that it was unwilling to further delay this case "on the eve of trial" by referring the matter to the WCB so that Dermer could obtain what it had failed to timely seek before the court, namely, a summary determination of its fourth affirmative defense.

We agree that under the particular circumstances of this case, referral was not indicated, and now affirm. We note, as an initial matter, that the compensation issue was never litigated before the Board because plaintiff, while working a reduced schedule following the incident, continued to receive his full salary and benefits from Soho. Dermer, other than asserting the workers' compensation statute as an affirmative defense in its answer, failed to raise the issue during the entire course of the litigation, and indeed, only raised the issue on the eve of trial, when discovery was complete and the time for making summary judgment motions had expired. The court aptly noted that Dermer was attempting to obtain via this motion relief it could no longer obtain by motion for summary judgment. Dermer may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation (see Bastidas v Epic Realty, LLC, 58 AD3d 776 [2009]).

Calcano v Rodriguez, 2012 NY Slip Op 00110 (1st Dept., 2012)

In sum, the Court of Appeals held in Thoma that a motion for summary judgment as to liability by a negligence plaintiff who cannot eliminate an issue as to his or her own comparative fault should simply be denied. This holding is binding on us, and we, like the Second Department, should follow it. Accordingly, we reverse the order appealed from and deny plaintiff's motion for summary judgment as to liability.

Tzilianos v New York City Tr. Auth., 2012 NY Slip Op 00026 (1st Dept., 2012)

Contrary to defendant's argument, we did not hold in Glover v New York City Tr. Auth. (60 AD3d 587 [2009], lv denied 13 NY3d 706 [2009]), that defendant's compliance with its own internal six-inch gap standard established non-negligence as a matter of law. In that case, the issue was whether the plaintiff produced competent evidence of the size of the gap (Glover at 587-588). The determination of the Court, namely reversal and dismissal of the complaint, was based upon the speculative and insufficient evidence of the width of the gap presented by the [*2]plaintiff in an attempt to show that the gap exceeded the six-inch standard. The Court, however, did not hold that compliance with the six-inch gap policy established the NYCTA's non-negligence as a matter of law.

In any event, even if we assumed defendant's gap standard is reflective of an industry standard or a generally accepted safety practice, the fact that it complied with its own internal operating rule constitutes some evidence that it exercised due care, but is not conclusive on the issue of liability. A jury must be satisfied with the reasonableness of the common practice, as well as the reasonableness of the behavior that adhered to the practice (see Trimarco v Klein, 56 NY2d 98, 105-107 [1982]). Therefore, defendant's compliance with its own internal standard is not a sufficient basis, standing alone, upon which to grant summary judgment in its favor.

Ostrov v Rozbruch, 2012 NY Slip Op 00022 (1st Dept., 2012)

We start with an examination of the basic purpose of summary judgment.

Calling summary judgment "a valuable, practical tool for resolving cases that involve only questions of law," the Court of Appeals stated it was "a great benefit both to the parties and to the overburdened New York State trial courts" by allowing a party to show that there is no material issue of fact to be tried, "thereby avoiding needless litigation cost and delay" (Brill v City of New York, 2 NY3d 648, 651 [2004]). As the Court recognized in Brill, these benefits can only be realized when motions for summary judgment are timely brought. The Legislature agreed, and in a 1996 amendment to CPLR 3212(a), provided that such motions be brought within 120 days after the filing of the note of issue, except for good cause shown. The goal, of course, is to provide a thorough presentation of the evidence on both sides and an expeditious determination by the court as to whether there are any material issues of fact to be tried.

Since summary judgment is the equivalent of a trial, it has been a cornerstone of New York jurisprudence that the proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law [*4](Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this requirement is met, the burden then shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, the motion court specifically found that defendant met his burden of establishing that he was entitled to judgment as a matter of law, thus shifting the burden to plaintiff to properly establish the existence of a material issue of fact. The court recognized that plaintiff's initial opposition papers did not meet that burden because of the "limited" discussion regarding whether the surgery on plaintiff's left knee was contraindicated. Although recognizing that this claim was possibly being raised for the first time in opposition to defendant's motion, the court, apparently relying on some of our prior decisions permitting additional submissions under limited circumstances, opted to permit the parties to submit additional evidence on this issue. The resulting submissions went well beyond the limitations our prior decisions envisioned.

It appears that our holdings in Orsini v Postel (267 AD2d 18 [1999]), Ashton v D.O.C.S. Continuum Med. Group, (68 AD3d 613 [2009]) and Tierney v Girardi (86 AD3d 447 [2011]) may have created the erroneous impression that supplemental submissions could be routinely utilized in summary judgment motions without regard to the scope of such submissions or the time limitations imposed by the CPLR. While such supplemental submissions may be appropriate in particular cases, they should be sparingly used and then only for a limited purpose. A careful reading of these cases warrants this conclusion.

In Orsini, which was decided before Brill, we found that the court properly exercised its discretion in accepting a supplemental physician's affirmation submitted by the plaintiff without leave of court in response to the defendant's reply papers. There, the affirmation "was submitted well in advance of argument, the IAS court expressly offered defendant an opportunity to respond, and it does not otherwise appear that defendant was prejudiced by the IAS court's preference to decide this eve-of-trial motion on as full a record as plaintiff wished to make" (267 AD2d at 18). Significantly, Orsini presented the type of "eve-of-trial" motion that Brill expressly condemned.

In Ashton, the court directed the plaintiff's expert to submit a supplemental affirmation elaborating solely on his initial conclusions. The defendants were also given a final opportunity to respond. We held that "the court properly exercised its discretion in directing plaintiff to submit a supplemental expert affirmation stating the basis for the expert's opinion, where defendants were permitted to respond and were not otherwise prejudiced." (68 AD3d at 614). Of note is the fact that, unlike here, the supplemental affirmation in Ashton was from the same expert, not a different expert in a different medical discipline, and was limited to a discrete issue, i.e., clarification of the grounds for the plaintiff's expert's initial conclusion.

Tierney presented a different situation. There, the defendants demonstrated their entitlement to judgment dismissing the complaint as a matter of law, shifting the burden to the plaintiff. The court properly exercised its discretion in excusing plaintiff's procedural oversights, "including the untimely filing of her expert's affirmation, where there was no showing that plaintiff acted in bad faith or that the late filing prejudiced defendants, and where the court [*5]permitted defendants to respond to the supplementary affidavit" (86 AD3d at 448). Once again, Tierney was not a situation where the plaintiff's opposition papers were insufficient and the parties were permitted to submit additional papers.

The supplemental submissions in all three cases were limited in scope and temporal duration. Indeed, there is no indication that the supplemental submissions included material from additional experts in other medical disciplines or information not originally referenced in plaintiff's initial opposition papers.

The situation before us in this case is very different.

As noted, both parties submitted supplemental expert affirmations from experts in different medical disciplines. Moreover, these affirmations expanded the scope of plaintiff's theory of medical malpractice beyond what was encompassed in the complaint and bill of particulars. Indeed, plaintiff's theory, as originally set forth in the complaint, alleged, inter alia, that the surgery was improperly performed. Her bill of particulars and supplementary bill of particulars only made oblique references to the failure to discuss alternatives to surgery and then only in the bill of particulars in response to defendant hospital's demands, not those of defendant doctor. "A court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint" (Mezger v Wyndham Homes, Inc., 81 AD3d 795, 796 [2011]; see also Abalola v Flower Hosp., 44 AD3d 522 [2007]). Since the court found plaintiff's opposition papers insufficient save for this new theory of recovery, defendant's motion should have been granted.

The problems created by open-ended supplemental submissions are manifest. A procedure designed to expeditiously determine a case took over 17 months from the time of the original filing of defendant's motion for summary judgment to the final order of the court. What started out as a limited inquiry into the basis of plaintiff's expert's conclusion that the surgery in question was contraindicated took on a life of its own, with the parties submitting affirmations from additional experts in a variety of medical disciplines. The improper submission of the medical article during the second oral argument caught defendant unawares. Importantly, none of the experts referenced this article in arriving at their opinions. Nevertheless, the court, over defendant's objections, received this article and utilized it as part of the basis for finding that plaintiff had raised a material issue of fact warranting a trial.

As the Court of Appeals stated in a different context, "[O]ur court system is dependent on all parties engaged in litigation abiding by the rules of proper practice" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010], citing Brill v City of New York, 2 NY3d 648 [2007], supra). We have held that "motion practice in connection with summary judgment should be confined to the limits imposed by CPLR 2214(b)" (Henry v Peguero, 72 AD3d 600, 602 [2010], appeal dismissed 15 NY3d 820 [2010]). We do not mean to limit the necessary discretion inherent in a court's authority to direct supplemental affirmations, in appropriate circumstances, such as those presented in Ashton or Tierney. Supplemental affirmations however, should be sparingly used to clarify limited issues, and should not be utilized as a matter of course to correct deficiencies in a party's moving or answering papers. [*6]

Accordingly, the order of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 21, 2010, which, to the extent appealed from as limited by the briefs, held defendant doctor's motion for summary judgment in abeyance pending the submission of further specified papers, should be reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint. The appeal from the order, same court and Justice, entered on or about January 20, 2011, which, to the extent appealed from, denied so much of defendant's motion for summary judgment as sought dismissal of plaintiff's claim that the left knee replacement surgery was contraindicated, should be dismissed, without costs, as academic.

Brown v Kass, 2012 NY Slip Op 00742 (2nd Dept., 2012)

The defendant moved, in effect, for summary judgment dismissing the complaint in Action No. 1 and for summary judgment dismissing the complaints insofar as asserted against him in Action Nos. 2, 3, and 4. The Supreme Court denied the motion, concluding that "there exist profound questions of credibility relating primarily to the parties themselves, and also to their respective witnesses,'" which precluded an award of summary judgment.

"It is not the court's function on a motion for summary judgment to assess credibility" (Ferrante v American Lung Assn., 90 NY2d 623, 631). " On a motion for summary judgment the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine,'" and " [a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact'" (Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731, 732, quoting 6243 Jericho Realty Corp. v AutoZone, Inc., 27 AD3d 447, 449). Summary judgment is inappropriate where triable issues of fact or credibility are raised that require a trial (see Zuckerman v City of New York, 49 NY2d 557).

Crawford v Smithtown Cent. School Dist., 2012 NY Slip Op 00746 (2nd Dept., 2012)

In opposition, the plaintiff failed to raise a triable issue of fact. The Supreme Court properly declined to consider the plaintiff's new theory of liability raised for the first time in opposition to the motion in light of the plaintiff's protracted delay in presenting it (see Horn v Hires, 84 AD3d 1025; Medina v Sears, Roebuck & Co., 41 AD3d 798).

Balducci v Velasquez, 2012 NY Slip Op 00921 (2nd Dept., 2012)

The Supreme Court also properly denied the separate cross motions of the Behnambakhshes and Decanio. The medical report of Dr. George V. DiGiacinto, submitted by the Behnambakhshes, was unaffirmed and, thus, in inadmissible form (see Grasso v Angerami, 79 NY2d 813; Lively v Fernandez, 85 AD3d 981; Pierson v Edwards, 77 AD3d 642; Vasquez v John Doe #1, 73 AD3d 1033). Furthermore, the admissible evidence relied upon by the Behnambakhshes did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the second accident, and the evidence relied upon by Decanio similarly did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the third accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Olic v Pappas, 47 AD3d 780). Since the Behnambakhshes and Decanio failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

Buffolino v City of New York, 2012 NY Slip Op 00924 (2nd Dept., 2012)

The Supreme Court properly denied, as untimely, the summary judgment motion of the defendant Stephanie Cho, which was made returnable six days beyond the deadline fixed by the Supreme Court in a so-ordered stipulation dated November 30, 2010, as she failed to demonstrate good cause for the delay (see CPLR 2004, 3212[a]; Brill v City of New York, 2 NY3d 648, 652; Van Dyke v Skanska USA Civ. Northeast, Inc., 83 AD3d 1049).

Jeansimon v Lumsden, 2012 NY Slip Op 00931 (2nd Dept,. 2012)

"Speculation and surmise are insufficient to defeat [*2]a motion for summary judgment" (Skouras v New York City Tr. Auth., 48 AD3d 547, 548; see Cusack v Peter Luger, Inc., 77 AD3d 785, 786; Cohen v Schachter, 51 AD3d 847; Frazier v City of New York, 47 AD3d 757; Smelley v Ahmed, 3 AD3d at 560; Portanova v Dynasty Meat Corp., 297 AD2d 792).

Taylor Bldg. Mgt., Inc. v Priority Payment Sys., LLC, 2012 NY Slip Op 00503 (2nd Dept., 2012)

In opposition, Priority failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d at 562). Rather, Priority's sole contention, and the focus of its submissions in opposition, was that Taylor would not be permitted to retain the $1.5 million contained in the reserve account, because, due to the alleged fraud committed by Woogo with respect to Global, Global would be permitted to offset its damages with the $1.5 million reserve account fund. At no point did Priority attempt to dispute the material allegations of Taylor's complaint.

Whatever allegations Global has made in the Georgia action with regard to the relationship between Woogo and Taylor, those allegations are not relevant to the issue raised in this appeal before this Court. Moreover, until Taylor is found liable to Global and a judgment is entered in Global's favor, any claim by Global that it is entitled to retain the funds contained in the reserve account is speculative.

Accordingly, the Supreme Court erred in denying Taylor's motion as premature, as further discovery of the relationship between Global and Woogo is irrelevant to the resolution of the motion at bar, and Priority has not identified any facts essential to justify opposition to which Priority did not have access (see Pacheco v Halstead Communications, Ltd., 90 AD3d 877; Ordonez v Levy, 19 AD3d 385, 386). Therefore, Taylor's motion for summary judgment on the issue of Priority's liability must be granted.

 

1012/1013–Intervention

CPLR § 1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

CPLR § 1013 Intervention by permission

Matter of Rapoport, 2012 NY Slip Op 00252 (1st Dept., 2012)

The Surrogate properly denied the proposed intervenors' request to intervene in the reformation proceeding regarding the testator's will. The proposed intervenors are not named in the will — a fact that they concede — and cannot fulfill the requirement under CPLR 1012 that the judgment may adversely affect their interests (see Matter of Vaughn, 267 AD2d 763, 763-64 [1999]; Matter of Flemm, 85 Misc 2d 855, 857 [1975]). Indeed, the proposed intervenors base their argument in favor of intervention on the occurrence of a contingent event that might or [*2]might not occur at an indeterminate time in the future. The distribution, if any, would rest in the executors' sole discretion. Thus, the proposed intervenors have no standing to intervene (see Matter of May, 213 AD2d 838, 839 [1995], lv dismissed 85 NY2d 1032 [1995]).

 

 American Home Mtge. Servicing, Inc. v Sharrocks, 2012 NY Slip Op 00918 (2nd Dept, 2012)

Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings" (Wells Fargo Bank, N.A. v McLean, 70 AD3d at 676- 677; see Berkoski v Board of Trustees of Inc. Vil. of Southampton, 67 AD3d 840, 843; Sieger v Sieger, 297 AD2d 33, 35-36; Perl v Aspromonte Realty Corp., 143 AD2d 824). In light of our determination that intervention was warranted pursuant to CPLR 1013, we need not determine whether intervention should have been permitted as of right under CPLR 1012(a).

A motion to consolidate two or more actions rests within the sound discretion of the trial court (see CPLR 602; Matter of Long Is. Indus. Group v Board of Assessors, 72 AD3d 1090, 1091; North Side Sav. Bank v Nyack Waterfront Assoc., 203 AD2d 439). Where common questions of law or fact exist, consolidation is warranted unless the opposing party demonstrates prejudice to a substantial right (see Alizio v Perpignano, 78 AD3d 1087, 1088; Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 855, 856; Glussi v Fortunre Brands, 276 AD2d 586).

***

In light of our determination consolidating the mortgage foreclosure action and the fraudulent conveyance action, the Supreme Court is now obligated to determine the allegations of [*3]fraudulent conveyance before entering any judgment in the consolidated action, including any judgment of foreclosure and sale, if warranted. Hence, there is no need to stay the foreclosure and sale pending resolution of the fraudulent conveyance action, and that branch of the appellant's motion which was for such a stay must be denied as unnecessary.

Breslin Realty Dev. Corp. v Shaw, 2012 NY Slip Op 00478 (2nd Dept., 2012)

We agree with the plaintiffs' contention that the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff should have been denied in its entirety. By the time Pecunies filed the motion, the litigating parties had already entered into a stipulation of settlement and this action was discontinued. Further, Pecunies was aware of this action from its inception, yet chose not to participate. Under these circumstances, there was no pending action in which to intervene, and the motion should have been denied in its entirety by the Supreme Court (see CPLR 1012, 1013; Carnrike v Youngs, 70 AD3d 1146; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737; 176 E. 123rd St. Corp. v Frangen, 67 Misc 2d 281).

Waiver

Agrawal v Metropolitan Life Ins. Co., 2011 NY Slip Op 07928 (1st Dept., 2011)

The decedent, plaintiffs' mother, represented in her application to obtain life insurance from defendant that she did not have diabetes or any in-force insurance other than a policy issued previously by defendant. She also made representations as to her net worth. After a lengthy investigation, defendant determined that the decedent had misrepresented her medical history, her in-force insurance and her net worth. However, in its repudiation letters, sent after the completion of its investigation, defendant based its denial of payment on the sole ground of the decedent's misrepresentation of her net worth.

To the extent defendant relies on the figure of $5-6 million in support of its assertion that the decedent misrepresented her net worth, its reliance is misplaced. The figure of $5-6 million was not included in the insurance application and therefore cannot be considered (see Insurance Law § 3204[a]; Tannenbaum v Provident Mut. Life Ins. Co. of Phila., 53 AD2d 86, 104-105 [1976], affd 41 NY2d 1087 [1977]). There is no dispute that the decedent satisfied the $500,000 net worth valuation asserted in her application.

Defendant's failure to assert the other defenses in its initial repudiation constitutes a waiver of those defenses for purposes of denying liability under the policies (Estee Lauder Inc. v OneBeacon Ins. Group, LLC, 62 AD3d 33, 35 [2009]).

Back to the pre note of issue status

CPLR R. 3404 Dismissal of abandoned cases

 

The last time I saw this was in Tejeda v Dyal, 2011 NY Slip Op 03125 (1st Dept., 2011)

Goldstein v Silverstein, 2011 NY Slip Op 07921 (1st Dept., 2011)

Plaintiff improperly argues for the first time on appeal that dismissal of the action pursuant to CPLR 3404 was incorrect because the striking of the action from the trial calendar had returned the case to its pre-note of issue status (see Nieman v Sears, Roebuck & Co., 4 AD3d 255, 255 [2004]). Plaintiff neither made a motion to restore the matter to the calendar within one year nor proffered an affidavit demonstrating that he had a meritorious cause of action.

 

Post accident repairs

CPLR § 4545 Admissibility of collateral source of payment

CPLR § 3101 Scope of disclosure

Stolowski v 234 E. 178th St. LLC, 2011 NY Slip Op 08222 (1st Dept., 2011)

Defendant bears the burden of establishing by clear and convincing evidence that it is entitled to an offset for any collateral source payment that represents reimbursement for a category of loss that corresponds to a category of loss for which damages are awarded in this action (see CPLR 4545; Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81 [1995]. Thus, disclosure of the death benefits that were or will be received by plaintiffs Bellew and Meyran is material and necessary in defense of this action (see CPLR 3101). The collateral source hearing at which a defendant has the opportunity to make the above showing is held after a verdict has been rendered in the plaintiff's favor. However, "[p]retrial discovery is available so defendants can acquire information and documents that may later be used to support a motion for a collateral source hearing" (Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d 18, 35 [2008], lv denied 11 NY3d 705 [2008]).

The records of defendant's post-fire repairs and remedial measures do not fall within any of the recognized exceptions to the general rule that evidence of post-accident repairs is generally inadmissible and may never be admitted to prove an admission of negligence (see Fernandez v Higdon El. Co., 220 AD2d 293 [1995]). Contrary to plaintiffs' contentions, "general credibility impeachment" is not an exception. Control is not at issue here since defendant concedes that it owns the premises (see Hyman v Aurora Contrs., 294 AD2d 229 [2002]). The fire department's full investigation of the fire, which produced diagrams and photographs, provides evidence of the existence of a defective condition (compare Mercado v St. Andrews Hous. Dev. Fund Co., 289 AD2d 148 [2001] [plaintiff entitled to seek disclosure of post-accident repairs or modifications where defective condition of sidewalk could not be proven otherwise]; Longo v Armor El. Co., 278 AD2d 127 [2000] [same; parts removed during repair of defective elevator were discarded]).

Interpleader fees

CPLR § 1006 Interpleader

Appel v Giddins, 2011 NY Slip Op 08215 (1st Dept., 2011)

Giddins's claim for costs and reasonable attorneys' fees may proceed because, notwithstanding plaintiff's characterization, her claims against Giddins are based on Giddins's performance of its duties as escrowee, and the contract provides for Giddins's recovery of costs and reasonable attorneys' fees incurred in connection with the performance of its duties as escrowee, which include responding to plaintiff's claims (see CPLR 1006[f]; Sun Life Ins. & Annuity Co. of N.Y. v Braslow, 38 AD3d 529 [2007]).