[App Div 2d Dept]

An unsigned, but useful Deposition

CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing.

Rodriguez v Ryder Truck, Inc., 2012 NY Slip Op 00769 (2nd Dept., 2012)

Contrary to the defendants' contentions, the unsigned but certified deposition of the plaintiff Juan Rodriguez, which was submitted in support of the plaintiffs' motion for summary judgment, was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent (see Ashif v Won Ok Lee, 57 AD3d 700). Additionally, although the plaintiffs initially failed to submit the certification page of the deposition of the defendant Derrick Thomas, they submitted it on reply in response to the defendants' arguments in opposition. Under the circumstances of this case, the late submission did not prejudice the defendants, and the Supreme Court should have considered the certification (see Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008; cf. Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003, 1004). Furthermore, although unsigned, as noted above, the transcript of Thomas's deposition was certified, and the defendants did not raise any challenges to its accuracy. Thus, it qualified as admissible evidence for purposes of the plaintiffs' motion for summary judgment (see Zalot v Zieba, 81 AD3d 935, 936; Bennett v Berger, 283 AD2d 374; Zabari v City of New York, 242 AD2d 15, 17). However, the uncertified and unsworn police report submitted by the plaintiffs in support of their motion was inadmissible (see Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991, 992; Bates v Yasin, 13 AD3d 474; Lacagnino v Gonzalez, 306 AD2d 250).

Disqualificaiton

Trimarco v Data Treasury Corp., 2012 NY Slip Op 00360 (2nd Dept., 2012)

The advocate-witness rules contained in the Rules of Professional Conduct (see 22 NYCRR 1200.0), provide guidance, but are not binding authority, for the courts in determining whether a party's attorney should be disqualified during litigation (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437). Rule 3.7 of the Rules of Professional Conduct provides that, unless certain exceptions apply, "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]; see Falk v Gallo, 73 AD3d 685). In order to disqualify counsel, a party moving for disqualification must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be [*2]prejudicial to the opposing party (see S & S Hotel Ventures Ltd. Partnership v 777 S.H., 69 NY2d at 446; Daniel Gale Assoc., Inc. v George, 8 AD3d 608, 609).

Here, the plaintiff failed to demonstrate that the disqualification of Richard B. Friedman and his law firm, McKenna, Long & Aldridge, LLP, from representing the defendant in this action was warranted. There was no showing that Friedman's testimony was necessary, as there was no evidence that he had first-hand knowledge of material facts relevant to the case (cf. Falk v Gallo, 73 AD3d 685). Further, the plaintiff failed to demonstrate that Friedman's testimony would be prejudicial to the defendant. Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was to disqualify Friedman and McKenna, Long & Aldridge, LLP, from representing the defendant in this action.

Priv

Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 2012 NY Slip Op 00827 (1st Dept., 2012)

Although the party challenging disclosure bears the burden of establishing that the information sought is immune from disclosure (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376-377 [1991]), defendants here, as proponents of the motion, did not challenge [*2]the existence of a privilege until their reply. "[T]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion" (Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]). Accordingly, the court erred in granting defendants' motion on burden grounds.

Furthermore, the " [a]t issue' waiver of privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63 [2007]). However, the fact "that a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself at issue' in the lawsuit" (id. at 64; see also Long Is. Light. Co. v Allianz Underwriters Ins. Co., 301 AD2d 23, 33 [2002]). Generally, no "at issue" waiver is found where the party asserting the privilege does not need the privileged documents to sustain its cause of action (see Deutsche Bank at 65).

Here, plaintiffs did not waive privilege by placing RMG's review of the loans "at issue." All references to the "third-party consultant" in their complaint could be stricken and it would still stand. Mention of a third-party consultant was not made as an element of the claim, but as a good-faith basis for the allegations made. Since plaintiffs do not "need the privileged documents to sustain [their] cause of action," they have not "waived the attorney-client privilege by injecting privileged materials into the lawsuit" (Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392, 397 [1987]). Nor did plaintiffs waive the privilege by making a selective non-disclosure (see Carone v Venator Group, 289 AD2d 185 [2001]).

Blank Rome, LLP v Parrish, 2012 NY Slip Op 00655 (1st Dept., 2012)

Defendant agreed in the so-ordered stipulation that "any attorney-client privilege applicable to his communications with attorneys representing him is waived for the purposes of this action." By this clear and express provision, defendant waived his attorney-client privilege with respect to the privileged documents produced by Storch Amini to the extent the documents involve matters relevant to the claims and defenses in this action (see DLJ Mtge. Capital Corp., [*2]Inc. v Fairmont Funding, Ltd., 81 AD3d 563, [2011]; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; Koren-DiResta Constr. Co. v New York City School Constr. Auth., 293 AD2d 189, 195 [2002]).

Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 2012 NY Slip Op 00357 (App. Div., 2nd 2012)

A waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication in issue or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information (see Hurrell-Harring v State of New York, 75 AD3d 667, 668; 601 Realty Corp. v Conway, Farrell, Curtin & Kelly, P.C., 74 AD3d 1179, 1179; Raphael v Clune White & Nelson, 146 AD2d 762, 763; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835). Moreover, a waiver may be found where a party engages in selective disclosure, "as a party may not rely on the protection of the privilege regarding damaging communications while disclosing other self-serving communications" (Village Bd. of Vil. of Pleasantville v Rattner, 130 AD2d 654, 655).

Contrary to the contention of the defendants third-party plaintiffs, under the circumstances presented, the plaintiff did not place the subject matter of the subject e-mail communications in issue and application of the privilege will not deprive them of vital information in defense of her claims. Nor is disclosure of the subject e-mails required under the doctrine of selective disclosure (cf. Orco Bank v Proteinas Del Pacifico, 179 AD2d 390, 390; Village Bd. of Vil. [*2]of Pleasantville v Rattner, 130 AD2d at 655). Accordingly, the Supreme Court properly denied the motion of the defendants third-party plaintiffs to compel the third-party defendant to produce certain e-mail communications withheld from disclosure on the ground that they were protected by the attorney-client privilege.

5015 and Defaults

Pichardo-Garcia v Josephine's Spa Corp., 2012 NY Slip Op 00004 (1st Dept., 2012)

In the absence of a determination by the motion court, pursuant to CPLR 5015(a)(1), of the reasonableness of plaintiff's proffered excuse for her failure to appear at a scheduled compliance conference, we reject the claim of law office failure as "conclusory and perfunctory" (see Perez v New York City Hous. Auth., 47 AD3d 505, 505 [2008]). Counsel explained that the failure to appear was due to a conflict between scheduled appearances in this action and in an unrelated action. However, he did not state that he took any steps to resolve or alleviate the conflict or that he was unaware of the conflict. Counsel's "overbooking of cases and inability to keep track of his appearances" does not constitute a reasonable excuse for the failure to appear (id.; see also Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454, 455 [2010], lv dismissed 15 NY3d 863 [2010]). Moreover, plaintiff made no attempt to vacate the default until almost a year after being served with the notice of its entry (see Youni, 70 AD3d at 455).

Kohn v Tri-State Hardwoods, Ltd., 2012 NY Slip Op 00933 (2nd Dept., 2012)

It is undisputed that the plaintiff defaulted in serving a reply to the appellant's counterclaim and that the appellant failed to move for leave to enter a default judgment on the counterclaim within one year after the default. Since the appellant failed to make a timely motion for leave to enter a default judgment, it was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious claim (see Giglio v NTIMP, Inc., 86 AD3d 301, 308; Costello v Reilly, 36 AD3d 581; Iorizzo v Mattikow, 25 AD3d 762, 763; Oparaji v Madison Queens-Guy Brewer, 293 AD2d 591, 592). The appellant failed to demonstrate a reasonable excuse for its delay of over two years after the one-year statutory time period had expired (see Butindaro v Grinberg, 57 AD3d 932, 933; Mattera v Capric, 54 AD3d 827, 828; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830; Opia v Chukwu, 278 AD2d 394). Accordingly, the appellant's motion for leave to enter a default judgment on the counterclaim was properly denied.

2261 Palmer Ave. Corp. v Malick, 2012 NY Slip Op 00506 (2nd Dept., 2012)

In order to vacate her default in appearing or answering the complaint, the defendant was required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015[a][1]; Bank of Am. v Faracco, 89 AD3d 879; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784; see also Swensen v MV Transp., Inc., 89 AD3d 924). Even if the defendant demonstrated a reasonable excuse for her default, our review of the record establishes that she failed to demonstrate a potentially meritorious defense to the action. The papers submitted in support of her cross motion, inter alia, to vacate her default in appearing or answering the compalint were replete with self-serving, vague, and unsubstantiated denials and unsupported legal conclusions as to whether a potentially meritorious defense to the action existed, and were thus an insufficient basis for vacating her default (see Thapt v Lutheran Med. Ctr., 89 AD3d 837; Garal Wholesalers, Ltd. v Raven Brands, Inc., 82 AD3d 1041).

Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a default judgment, and properly denied that branch of the defendant's cross motion which was to vacate her default in appearing or answering the complaint.

Toll Bros., Inc. v Dorsch, 2012 NY Slip Op 00359 (2nd Dept., 2012)

"A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action" (Clover M. Barrett, P.C. v Gordon,AD3d, 2011 NY Slip Op 09581, *1 [2d Dept 2011]; see Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628). "Other factors which the court should consider include whether the default prejudiced the opposing party, whether it was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible" (Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150, 1150-1151; see U.S. Bank, N.A. v Dick, 67 AD3d 900, 902; Moore v Day, 55 AD3d 803, 804).

Here, the defendant established both a reasonable excuse for the default, and the [*2]existence of a potentially meritorious defense to the action. Further, there was no showing by the plaintiff that it was prejudiced by the default or that the default was willful, and public policy favors the resolution of cases on their merits (see Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d at 1151; Moore v Day, 55 AD3d at 805; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313; Ahmad v Aniolowiski, 28 AD3d 692, 693). Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate his default.

Not a business record: CPLR 4518 and a DVD

CPLR R. 4518 Business records

Lambert v Sklar, 2012 NY Slip Op 00755 (2nd Dept., 2012)

In opposition, the plaintiffs failed to raise a triable issue of fact. According to the deposition testimony of the decedent's widow, which was submitted by the defendants, she did not know the purpose of the payments identified in the check register. Moreover, even if the check register were the decedent's, it was inadmissible as a business record (see CPLR 4518[a]), and incompetent to prove that the corresponding checks were loans, rather than repayments of advances (see Matter of Roge v Valentine, 280 NY 268; Leask v Hoagland, 205 NY 171; Nappi v Gerdts, 103 AD2d 737; Shea v McKeon, 264 App Div 573; Bogatin v Brader, 243 App Div 856; Matter of Levi, 3 Misc 2d 746; In re Purdy's Will, 73 NYS2d 38 [Sur Ct 1947]; see also Nay v Curley, 113 NY 575, 577; Koehler v Adler, 78 NY 287). Given the plaintiffs failure to set forth admissible evidence raising a triable issue of fact as to whether the defendants made any material misrepresentations to the public administrator, the Supreme Court properly granted the defendants' motion for summary judgment, in effect, dismissing the cause of action alleging fraud, and, in effect, properly denied the plaintiffs' cross-motion for summary judgment, in effect, on the cause of action alleging fraud.

National Ctr. for Crisis Mgt., Inc. v Lerner, 2012 NY Slip Op 00758 (2nd Dept., 2012)

Additionally, the Supreme Court properly declined to consider a DVD recording submitted by the defendant in support of her motion for summary judgment, as it cannot be concluded that the video recording truly and accurately represented what the defendant purported it to show (see Zegarelli v Hughes, 3 NY3d 64, 69; see also People v Patterson, 93 NY2d 80, 85; cf. People v Byrnes, 33 NY2d 343, 349).

Standing

Sharrow v Sheridan, 2012 NY Slip Op 00773 (2nd Dept., 2012)

The mother and sister separately moved pursuant to CPLR 3211(a) to dismiss the action, contending, inter alia, that the plaintiff lacked standing to commence this action. In the order appealed from, the Supreme Court, inter alia, granted the separate motions to dismiss based upon lack of standing. The plaintiff appeals. During the pendency of the appeal, the mother died and a special administrator of her estate was substituted in the mother's place.

The Supreme Court properly granted the separate motions to dismiss based upon lack [*2]of standing. The defendants demonstrated that the mother had revoked the power of attorney naming the plaintiff as her attorney-in-fact. The plaintiff further lacked standing to commence this action as his mother's potential heir (see Schneider v David, 169 AD2d 506, 507). While his mother was alive, she had the absolute right to change her intentions regarding the distribution of her assets. Accordingly, the plaintiff's interest as his mother's potential heir was just that—a potential, speculative interest. "The rules governing standing help courts separate the tangible from the abstract or speculative injury" (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812, cert denied 540 US 1017). Thus, under these circumstances, the plaintiff lacked standing to commence this action.

JPMorgan Chase Bank, N.A. v Bauer, 2012 NY Slip Op 00932 (2nd Dept., 2012)

The plaintiff bank made a prima facie showing of entitlement to judgment as a matter of law against Bauer by submitting proof of the existence of the underlying credit agreement, Bauer's personal guaranty of the obligations of the dental practice under that agreement, and the failure of the dental practice to make payment in accordance with the terms of the credit agreement (see HSBC Bank USA, N.A. v Laniado, 72 AD3d 645; Wolf v Citibank, N.A., 34 AD3d 574, 575; Kensington House Co. v Oram, 293 AD2d 304, 304-305). Bauer failed to raise a triable issue of fact in opposition. "[S]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature," and Bauer's "affidavit was alone inadequate to raise an issue of fact necessitating a trial" (Banco Popular N.A. v Victory Taxi Mgt., 1 NY3d 381, 384; see [*2]Seaboard Sur. Co. v Nigro Bros., 222 AD2d 574).

Bauer waived the defense of lack of standing by failing to raise it in either her answer or in a pre-answer motion to dismiss the complaint (see CitiMortgage, Inc. v Rosenthal, 88 AD3d 759; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244).

(Restored): 202.21 and 202.27. A peculiar set of facts.

22 NYCRR 202.21 Note of issue and certificate of readiness

22 NYCRR 202.27 Defaults

Soo Ji Kim v Seney, 2012 NY Slip Op 00774 (2nd Dept., 2012)

On January 25, 2010, the Supreme Court struck the action from the trial calendar after the plaintiff appeared for the calendar call but was not ready for trial. There was no order vacating the note of issue pursuant to 22 NYCRR 202.21(e). Accordingly, contrary to the defendant's contention, in moving to restore the action to the trial calendar, the plaintiff was not required to submit a certificate of readiness or show that the case was ready for trial (see 22 NYCRR 202.21[f]; Ross v Brookdale Univ. Hosp. & Med. Ctr., 54 AD3d 370, 371). Furthermore, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic (see CPLR 3404; Ross v Brookdale Univ. Hosp. & Med. Ctr., 54 AD3d at 371; Kohn v Citigroup, Inc., 29 AD3d 530, 532; Basetti v Nour, 287 AD2d 126, 133-134).

Moreover, after the matter was stricken from the trial calendar, there was no order [*2]dismissing the action pursuant to 22 NYCRR 202.27 (see Mitskevitch v City of New York, 78 AD3d 1137, 1138; Casavecchia v Mizrahi, 62 AD3d 741, 742; Burdick v Marcus, 17 AD3d 388). Accordingly, the plaintiff's motion to reinstate the note of issue should have been granted, and, upon renewal and reargument, the plaintiff's motion to restore the action to the trial calendar should have been granted.

Experts and CPRL 3101

Jing Xue Jiang v Dollar Rent a Car, Inc., 2012 NY Slip Op 00183 (2nd Dept., 2012)

Contrary to the defendants' contentions, the Supreme Court did not err in declining to strike the testimony of the plaintiff's treating physician, Dr. Jeffrey Klein (see Logan v Roman, 58 AD3d 810; Butler v Grimes, 40 AD3d 569, 570; Krinsky v Rachleff, 276 AD2d 748, 750). A treating physician may give expert opinion testimony and may do so without prior notice pursuant to CPLR 3101(d) (see Hughes v Webb, 40 AD3d 1035, 1037; Hammond v Welsh, 29 AD3d 518, 519; Krinsky v Rachleff, 276 AD2d at 750).

Henry v New York City Tr. Auth., 2012 NY Slip Op 00839 (1st Dept., 2012)

The admission of plaintiff's dental testimony as to causation was proper. While the dentist did not render his opinion with "a reasonable degree of medical certainty," causation was established by his testimony, when considered in its entirety, and plaintiff's history of first noticing the loose teeth in the hospital following the accident (see Matott v Ward, 48 NY2d 455, 460 [1979]). The weight to be accorded to conflicting expert testimony was within the province of the jury (see Torricelli v Pisacano, 9 AD3d 291, 293 [2004], lv denied 3 NY3d 612 [2004]).

Carlton v St. Barnabas Hosp., 2012 NY Slip Op 00470 (1st Dept., 2012)

Third-party defendants made a prima facie showing — based on hospital records, deposition testimony and the affirmations of experts — that their treatment of plaintiff's late husband comported with good and accepted medical practice. Contrary to plaintiff's contention, the emergency medical physician's opinions were not conclusory (cf. Wasserman v Carella, 307 AD2d 225, 226 [2003]). In addition, plaintiff failed to preserve her argument that third-party defendants and their experts relied on inadmissible evidence (see Pirraglia v CCC Realty NY Corp., 35 AD3d 234, 235 [2006]), and we decline to review in the interest of justice. Were we to review it, we would reject it. Plaintiff does not challenge the accuracy or veracity of the decedent's uncertified medical records or the transcripts of her testimony. In fact, she relied on the medical records in opposition to the motions. [*2]

Plaintiff failed to raise an issue of fact in response to the motions. The affirmation of plaintiff's expert was conclusory, ignored the bulk of the record of the decedent's treatment in the emergency room, and was insufficient to contradict third-party defendants' expert. The defense offered expert testimony that, in light of decedent's symptoms and complaints, he was appropriately diagnosed with lumbosacral sprain/strain and possible radiculopathy, and referred to a neurologist (see Altmann v Molead, 51 AD3d 482, 483 [2008]). Plaintiff's claim that third-party defendants should have detected decedent's deep vein thrombosis was also conclusory and unsupported by the record (see id.; Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]).

Urbano v Rockefeller Ctr. N., Inc., 2012 NY Slip Op 00419 (1st Dept., 2012)

The affidavit of plaintiff's expert does not support plaintiff's theory since it is based on speculation rather than record facts (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]).

Singer v Gae Limo Corp., 2012 NY Slip Op 00303 (1st Dept., 2012)

However, in support of his motion, defendant failed to submit any medical evidence addressing plaintiff's claim of serious injury based on piriformis syndrome and left sacroiliac joint syndrome in her pelvis/left buttock. Further, since defendant's experts examined her more than three years after the accident and did not address those claimed injuries, and defendant submitted no other evidence concerning plaintiff's condition in the 180 days following the accident, defendant also failed to meet his burden on plaintiff's 90/180-day claim (see e.g. Quinones v Ksieniewicz, 80 AD3d 506, 506-507 [2011]; Feaster v Boulabat, 77 AD3d 440, 441 [2010]). Since defendant did not meet his prima facie burden as to those claims, the burden did not shift to plaintiff and it is unnecessary to consider the sufficiency of her evidence in opposition (see Reyes v Diaz, 82 AD3d 484 [2011]; Shumway v Bungeroth, 58 AD3d 431 [2009]). If the trier of fact determines that plaintiff sustained a serious injury, it may award damages for all injuries causally related to the accident, even those that do not meet the threshold (see Linton v Nawaz, 14 NY3d 821 [2010]; Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [2010]).

Grant v United Pavers Co., Inc., 2012 NY Slip Op 00239 (1st Dept., 2012)

Although plaintiff's physicians did not expressly address defendants' expert's conclusion that the injuries were degenerative in origin, by relying on the same MRI report as defendants' expert, and attributing plaintiff's injuries to a different, yet equally plausible cause, plaintiffs raised a triable issue of fact (see Lee Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [2011]; Linton v Nawaz, 62 AD3d 434, 440 [2009], affd 14 NY3d 821 [2010]). Although "[a] factfinder could of course reject this opinion" (Perl v Meher, __ NY3d __, 2011 NY Slip Op 08452 [2011]), we cannot say on this record, as a matter of law, that plaintiff's injuries had no causal connection to the accident.

Spagnoli-Scheman v Bellew, 2012 NY Slip Op 00005 (1st Dept., 2012)

The jury's verdict was based upon a fair interpretation of the evidence (see generally McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 205-206 [2004]). There was conflicting expert testimony regarding whether plaintiff Spagnoli-Scheman sustained serious injuries within the meaning of Insurance Law § 5102(d), and the jury was "entitled to accept or reject" the testimony of plaintiffs' experts "in whole or in part" (Crooms v Sauer Bros., Inc., 48 AD3d 380, 382 [2008]; see Crespo v Chan, 54 AD3d 621 [2008]).

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]).