Category: [App Div 1st Dept]

Corroborated Hearsay

U.S. Bank Trust, N.A. v Ellis, 2020 NY Slip Op 01569 [1st Dept 2020]

We agree, however, with defendant that the 2016 notice is not an authenticated business record and, therefore, it is not admissible as presented in the record, leading us to modify Supreme Court’s order by denying plaintiff’s motion for summary judgment. This hearsay document, however, is sufficient to defeat Ellis’s summary judgment motion, because it is sufficiently corroborated by other evidence (see Zupan v Price Chopper Operating Co., Inc., 132 AD3d 1211, 1213 [3d Dept 2015]).

Moot

Matter of Gorman v Gardyn, 2020 NY Slip Op 01501 [2d Dept. 2020]

“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713; see Matter of Kirkland v Annucci, 150 AD3d 736, 737). “Courts are generally prohibited from issuing advisory opinions or ruling on hypothetical inquiries. Thus, an appeal is [*2]moot unless an adjudication of the merits will result in immediate and practical consequences to the parties” (Matter of Kirkland v Annucci, 150 AD3d at 738 [internal quotation marks omitted]; see Matter of Sweeney v Schneider, 123 AD3d 1049, 1050). Here, as the Board had subsequently appointed a new president of Nassau Community College and held another election of officers, the petition and the relief sought therein was rendered academic (see Matter of Hearst Corp. v Clyne, 50 NY2d at 713; Matter of Kirkland v Annucci, 150 AD3d at 738; Matter of Sweeney v Schneider, 123 AD3d at 1050). Accordingly, we agree with the Supreme Court’s determination to deny the petition and dismiss the proceeding.

2221 Renewal in the interest of justice

Ross v Lewis, 2020 NY Slip Op 01461 [1st Dept. 2020]

The duty of a landowner to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended (see Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]).

It was undisputed that the snow continued to fall, albeit in trace amounts, until 2:30 a.m. at the earliest, five and a half hours before the accident. The weather records and defendant’s expert’s affidavit, once presented in admissible form, indicated that it was snowing in more than trace amounts until 11 p.m. on January 23, 2016, and in trace amounts thereafter. Thus, a reasonable period of time to correct the snow and ice condition on the steps had not yet elapsed at the time of the accident, given the blizzard conditions.

Plaintiff asserts that the weather data was not in admissible form on defendant’s initial motion. However, the court in its discretion may grant renewal in the interest of justice, upon facts known to the movant at the time of the original motion so as not to “defeat substantive fairness” (see Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460, 461 [1st Dept 2007]). Here, the court improvidently exercised its discretion upon renewal in failing to consider the weather data, in that the charts were identical to the data submitted in connection with the initial motion and plaintiff did not challenge the information or authenticity of the data contained in the charts.

Plaintiff contends that, regardless of whether defendant was required to remove the snow at an earlier time, his efforts, as depicted in a photograph, exacerbated the dangerous condition.However, the photograph is too unclear to raise a triable issue of fact as to this speculative claim.

Admissions

MIC Gen. Ins. Corp. v Campbell, 2020 NY Slip Op 01465 [1st Dept. 2020]

Plaintiff demonstrated, via defendant’s admission in a statement to its investigator and the investigator’s inspection of the insured premises, that defendant did not reside at the premises and was therefore not covered by the policy (see Almonte v CastlePoint Ins. Co., 140 AD3d 658 [1st Dept 2016]).

Choice of Law and Choice of Forum

Favourite Ltd. v Cico, 2020 NY Slip Op 01463 [1st Dept 2020]

Contrary to defendants’ contention, New York courts have subject matter jurisdiction over the amended complaint, which was supposed to contain only derivative claims (see Matter of Raharney Capital, LLC v Capital Stack LLC, 138 AD3d 83, 87 [1st Dept 2016]). The fact that the operating agreement of Upper East Side Suites, LLC (the Company) chooses Delaware law is of no moment, since “choice of law and choice of forum are altogether separate matters” (Bank of Tokyo-Mitsubishi, Ltd. v Kvaerner, 243 AD2d 1, 5 [1st Dept 1998]). Furthermore, section 18-1001 of the Delaware Limited Liability Company Act (the Act), which provides that “a member or an assignee of a limited liability company interest may bring an action in the Court of Chancery,” is permissive, not mandatory (see generally Estate of Calderwood v ACE Group Intl. LLC, 157 AD3d 190, 195 [1st Dept 2017], lv dismissed 31 NY3d 1111 [2018]).

3124 Cell records

Dani v 551 W. 21st St. Owner LLC, 2020 NY Slip Op 01456 [1st Dept. 2020]

The court providently exercised its discretion in denying defendants’ motion (see generally Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 373 [1st Dept 2008]). Defendants at this point have failed to satisfy the “threshold requirement” that the request was reasonably calculated to yield information that is “material and necessary” (Forman v Henkin, 30 NY3d 656, 661 [2018] [internal quotation marks omitted]). The affidavits submitted in support of the motion simply stated that plaintiff was holding his cell phone in his hand prior to the trip and fall accident, and that the cell phone was found near his body after the accident. As such, they were too speculative to warrant disclosure of plaintiff’s cell phone records (see Gough v Panorama Windows, Ltd., 133 AD3d 526 [1st Dept 2015]).

On Summary Judgment [CPLR 3212]

Nill v Schneider, 173 AD3d 753 [2d Dept. 2019]

“It is a defendant’s burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiff’s proof” (Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871 [2015]).

Rivera v City of New York, 173 AD3d 790 [2d Dept. 2019]

We also agree with the Supreme Court’s determination denying that branch of Carter’s motion which was for summary judgment dismissing all cross claims insofar as asserted against it. The papers submitted in support of the motion failed to include copies of the relevant pleadings as required by CPLR 3212 (b), thereby precluding review of the purported cross claims (see Mieles v Tarar, 100 AD3d 719, 720 [2012]; Matsyuk v Konkalipos, 35 AD3d 675, 676 [2006]; Wider v Heller, 24 AD3d 433, 434 [2005]).

Bargil Assoc., LLC v Crites, 173 AD3d 958 [2d Dept. 2019]

Motions for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue” (CPLR 3212 [a]) unless the Supreme Court has set a different deadline. A party may not file a late summary judgment motion without leave of the court “on good cause shown” (CPLR 3212 [a]), which requires the movant to articulate a “satisfactory explanation for the untimeliness” of the motion (Brill v City of New York, 2 NY3d 648, 652 [2004]; see Milano v George, 17 AD3d 644, 645 [2005]). “In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment” (Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d 796, 796 [2011] [internal quotation marks omitted]; see Greenpoint Props., Inc. v Carter, 82 AD3d 1157, 1158 [2011]).

Here, the plaintiff’s motion was made almost five years after the 120-day deadline expired. The plaintiff failed to demonstrate, in its moving papers, good cause for not filing the motion in a timely manner, and only attempted to do so, improperly for the first time, in its reply papers (see Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869 [2016]).  Accordingly, we agree with the Supreme Court’s determination denying, as untimely, the plaintiff’s motion for summary judgment.

Mazzurco v Gordon, 173 AD3d 1003 [2d Dept. 2019]

Here, the defendants failed to meet their initial burden on their motion. The defendants sought to establish their prima facie entitlement to judgment as a matter of law by relying on the Supreme Court’s preclusion order, but they failed to demonstrate, prima facie, that the plaintiff could not meet his burden of proof at trial through evidence other than the precluded fact witnesses. To the contrary, the defendants’ own motion papers demonstrated the availability of other proof on which the plaintiff could rely at trial. Accordingly, we agree with the court’s determination to deny the defendants’ motion for summary judgment dismissing the complaint, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Saunders v J.P.Z. Realty, LLC, 2019 NY Slip Op 06573 [1st Dept. 2019]

 In this regard, CPLR 3212(b) provides that a summary judgment motion “shall be supported by affidavit” of a person “having knowledge of the facts” as well as other admissible evidence (see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967 [1985]). A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden (see e.g. Vermette v Kenworth Truck Co. , 68 NY2d 714 [1986]).

Painful IME

Goldson v Mann, 173 AD3d 410 [1st Dept. 2019]

Defendant failed to meet his prima facie burden of demonstrating that he did not depart from good and accepted medical practice in examining plaintiff during an independent medical examination (IME), or that any such departure was not a proximate cause of plaintiff’s injury to her left shoulder (see Scalisi v Oberlander, 96 AD3d 106, 120 [1st Dept 2012]). Defendant’s expert affirmation, which relied on defendant’s testimony regarding his custom and practice of examining patients during his IMEs, was insufficient. Defendant’s testimony did not establish a deliberate and repetitive practice sufficient to show evidence of his behavior during plaintiff’s examination, as he testified that his examination varied depending on the examinee (see Rivera v Anilesh, 8 NY3d 627, 634 [2007]). Therefore, the expert’s reliance on such testimony to conclude that defendant had not deviated from the accepted standard of care rendered his affirmation insufficient (compare id. at 635-636).

Defendant’s expert also failed to establish that defendant did not cause or exacerbate plaintiff’s left shoulder condition. He failed to address differences in plaintiff’s MRI findings or statements made by plaintiff’s treating physician, which suggested that plaintiff had suffered a new injury after the IME. The expert also ignored plaintiff’s testimony that defendant had forcefully pushed her left arm over her head and caused a new injury (see Wasserman v Carella, 307 AD2d 225, 226 [1st Dept 2003]), and provided no support for his statement that plaintiff’s post-IME injuries were degenerative in nature, and not traumatically induced (see Frias v James, 69 AD3d 466, 467 [1st Dept 2010]).

Argued by one judge. Decided by another.

Marti v Rana, 173 AD3d 576 [1st Dept. 2019]

The fact that oral argument was held before a different Justice than the Justice who ultimately decided the motion for summary judgment is not a proper basis for vacating the order granting summary judgment. Although Judiciary Law § 21 provides that a Supreme Court Justice “shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge,” reversal is not warranted on this ground, because the Justice who granted the motion decided a purely legal question (People v Hampton, 21 NY3d 277, 286 [2013]).

Plaintiffs argue that they were prejudiced because certain statements made by the court at oral argument led them to believe that a motion for leave to amend was not necessary. This argument is unavailing. To the extent counsel relied on his impressions of the court’s leanings, which were never incorporated into a binding order, he did so at his own peril.