Category: Appellate Division

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action
(b) Supporting proof; grounds; relief to either party
(f) Facts unavailable to opposing party

CPLR § 3213 Motion for summary judgment in lieu of complaint

Abdalla v Mazl Taxi, Inc., 2009 NY Slip Op 07566 (App. Div., 2nd, 2009)

The defendants established good cause in support of that branch of
their motion which was for leave to extend their time to move for
summary judgment until 120 days after receipt of all outstanding
discovery, since there was significant discovery outstanding at the
time the note of issue was filed (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Jones v Grand Opal Constr. Corp., 64 AD3d 543; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724). Therefore, that branch of their motion should have been granted.

Delacruz v Ostrich Cab Corp., 2009 NY Slip Op 07577 (App. Div., 2nd, 2009)

The defendants failed to meet their prima facie burden of showing that
the plaintiff did not sustain a serious injury within the meaning of
Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79
NY2d 955, 956-957). During his examination of the plaintiff, the
defendants' orthopedic surgeon found restrictions in the range of
motion of the plaintiff's lumbar spine, which he described as
"self-restricted." However, he failed to explain or substantiate with
any objective medical evidence the basis for his conclusion that the
limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Accordingly, the Supreme Court properly denied the defendants' motion
for summary judgment without considering the sufficiency of the
plaintiff's opposition papers (see Cuevas v Compote Cab Corp., 61 AD3d 812; Coscia v 938 Trading Corp., 283 AD2d 538). 

Solomon v Langer, 2009 NY Slip Op 07335 (App. Div., 1st, 2009)

Plaintiff established her entitlement to summary judgment in lieu of
complaint on the promissory note made by defendant by establishing
execution, delivery, demand and failure to pay (see Israel Discount Bank of N.Y. v 500 Fifth Ave. Assoc.,
167 AD2d 203 [1990]). Defendant failed to substantiate, in evidentiary
form, his assertion that payments to plaintiff's mother, an alleged
business acquaintance since deceased, discharged the note. Defendant
sets forth no evidence of misleading conduct on the part of plaintiff
indicating that she gave her mother the authority to transact business
on her behalf (compare Hallock v State of New York, 64 NY2d 224,
231 [1984]). Furthermore, the note unequivocally stated that payment
was to be made directly to plaintiff and the parol evidence rule bars
consideration of defendant's purported oral agreement with plaintiff's
mother regarding payment of the loan (see Manufacturers Hanover Trust Co. v Margolis,
115 AD2d 406 [1985]). Moreover, it is settled that "invocation of
defenses based on facts extrinsic to an instrument for the payment of
money only do not [*2]preclude CPLR 3213 consideration" (Alard, L.L.C. v Weiss, 1 AD3d 131,767 NYS2d 11, 2003 N.Y. Slip Op. 18173).

Davila v New York City Tr. Auth., 2009 NY Slip Op 07792 (App. Div., 2nd, 2009)

The opposition to the motion submitted by Keyspan and the defendant
Liberty Department Store, the only parties who opposed the motion,
failed to raise a triable issue of fact (see CPLR 3212[b]). [*2]Moreover,
contrary to the contention of those defendants, the appellant's motion
was not premature, as they failed to offer an evidentiary basis to
suggest that discovery may lead to relevant evidence and that facts
essential to justify opposition were exclusively within the knowledge
or control of the appellant (see Lopez v WS Distrib., Inc., 34
AD3d 759, 760). "The mere hope or speculation that evidence sufficient
to defeat a motion for summary judgment may be uncovered during the
discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34
AD3d 759). Accordingly, the Supreme Court should have granted the
appellant's motion for summary judgment dismissing the complaint and
all cross claims insofar as asserted against it.

and finally,

Stoian v Reed, 2009 NY Slip Op 07713 (App. Div., 3rd, 2009)

We also reject plaintiffs' assertion that Supreme Court abused its
discretion in failing to grant them additional time with which to
conduct discovery. Although the court had the discretion to permit
further discovery if it found that "facts essential to justify
opposition [to a motion for summary judgment] may exist but cannot then
be stated" (CPLR 3212 [f]; see Clochessy v Gagnon, 58 AD3d
1008, 1010 [2009]), "the nonmoving party must produce some evidence
indicating that further discovery 'will yield material and relevant
evidence'" (Fleischman v Peacock Water Co., Inc., 51 AD3d 1203, 1205 [2008], quoting Zinter Handling, Inc. v Britton, 46 AD3d 998,
1001 [2007] [citation omitted]). "The 'mere hope' that evidence
sufficient to defeat the motion may be uncovered during the discovery
process is not enough" (Mazzaferro v Barterama Corp., 218 AD2d 643, 644 [1995], quoting Jones v Gameray, 153 AD2d 550, 551 [1989]; see Clochessy v Gagnon, 58 AD3d at 1010).

Here, plaintiffs requested an extension to obtain testimony from
three contractors that had worked on the house. However, plaintiffs
fail to provide any specifics as to how these [*3]individuals could provide evidence material and relevant to defendants' alleged active concealment (see Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Further, it is undisputed that plaintiffs provided
defendants with a list of contractors who worked on the house prior to
the 1999 closing; indeed, plaintiff admitted during his deposition that
he spoke with at least two of these individuals regarding repairs to
the house (see Flieschman v Peacock Water Co., Inc., 51 AD3d at 1205; Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Under these circumstances, and given the fact that
plaintiffs provide no reasonable excuse for delaying their request for
additional discovery for over two years following depositions and,
indeed, nearly six years after commencing this action, we find no abuse
of discretion in Supreme Court's decision to deny plaintiffs' request (see Dalaba v City of Schenectady, 61 AD3d 1151, 1153 [2009]).

No-fault Defender talks about the case too.

CPLR R. 3211(e) Number, time and waiver of objections; motion to plead over

CPLR § 3020 Verification

CPLR § 105 Definitions

(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

Deutsche Bank Natl. Trust Co. v Young, 2009 NY Slip Op 07578 (App. Div., 2nd, 2009)

Simple enough.

Urban Justice Ctr. v Silver, 2009 NY Slip Op 07506 (App. DIv., 1st, 2009)

Plaintiff Urban Justice Center (UJC) lacks standing to bring this
action. While it alleges vaguely that the prohibitions on communication
contained in the Assembly and Senate rules as to what constitutes
"official mail" for purposes of Legislative Law § 16 interfere with its
ability and that of its clients to receive the communications necessary
to enable them to measure the responsiveness and efficacy of their
elected representatives while determining the best use of their limited
advocacy resources, this is not an infringement unique and distinct to
UJC and its clients. All citizens have the right to open access to
their elected representatives, and are deprived of that right when
communications from their legislators are censored. UJC has failed to
allege a personally concrete and demonstrable injury distinct from that
suffered by the public at large (see Matter of Transactive Corp. v New York State Dept. of Social Servs.,
92 NY2d 579, 587 [1998]). For the same reason, UJC also lacks
third-party standing to raise a First Amendment claim on behalf of its
clients (see Matter of MFY Legal Servs. v Dudley, 67 NY2d 706,
708-709 [1986]). Because it has not alleged that the rules and
practices at issue have caused it "injury by way of an added burden on
[its] resources," or that its need to litigate this action on behalf of
its clients is such a "central concern of our society" as to justify
giving it standing without otherwise meeting the requirement of showing
injury-in-fact, there is no basis for conferring organizational
standing upon UJC under Grant v Cuomo (130 AD2d 154, 159 [1987], affd 73 NY2d 820 [1988]).

A little more complicated.

Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (App. Div., 2nd, 2009)

Wells Fargo also contends that the assignment is valid, as it is
retroactive to October 28, 2007, a date prior to the commencement of
the action. Wells Fargo again relies on Hoovis, where the retroactive assignment was effective on May 1, 1997, prior to the commencement of the action on June 19, 1997 (see Bankers Trust Co. v Hoovis, 263 AD2d at 938). In Hoovis, however,
the defendant was unable to contradict the plaintiff's documentation
demonstrating that delivery of the note and mortgage occurred prior to
the initiation of the action. Here, it is clear that the date of the
execution of the assignment was after the commencement of the action.
If an assignment is in writing, "the execution date is generally
controlling and a written assignment claiming an earlier effective date
is deficient unless it is accompanied by proof that the physical
delivery of the note and mortgage was, in fact, previously effectuated"
(LaSalle Bank Natl. Assn., 59 AD3d at 912). While recognizing
that in some circumstances parties to an agreement may bind themselves
retroactively, "the fiction of retroactivity . . . should not be
applied to affect adversely the rights of third persons" (Debreceni v Outlet Co., 784 F2d 13, 20; see also 2
Lord, Williston on Contracts § 6:61, at 893 [4th ed]). Thus, a
retroactive assignment cannot be used to confer standing upon the
assignee in a foreclosure action commenced prior to the execution of
the assignment (see LaSalle Bank Natl. Assn., 59 AD3d 912). We
disagree with the contention of Wells Fargo that public policy favors
permitting less than strict compliance with the requirement that, in
order to commence a foreclosure action, a plaintiff must have a legal
or equitable interest in the subject mortgage.

Wells Fargo also argues that if the action were to be
dismissed, the result would be a waste of judicial resources, as it
would simply commence another action as soon as the original action was
dismissed. Wells Fargo might have reached this conclusion earlier in
its calculus to commence the lawsuit prior to the execution of the
assignment.

Significantly, Wells Fargo's attorney submitted a verification
pursuant to CPLR 3020(d)(3), which allows an attorney to verify the
complaint if the party is not in the county where the attorney
maintains [*4]an office. "A verification
is a statement under oath that the pleading is true to the knowledge of
the deponent, except as to matters alleged on information and belief,
and as to those matters, he believes it to be true" (CPLR 3020[a]).
"Since the verification makes the pleading, or those parts of the
pleading that are verified, sworn data, a verified pleading is the
equivalent of an affidavit, CPLR 105, and may be used for the same
purposes" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C3020:2). When an attorney verifies, he or she affirms
under the penalties of perjury (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3020:9).

In the verification, Wells Fargo's attorney affirmed the
complaint to be true to the best of his knowledge, and his belief as to
matters stated to be alleged on information and belief was based upon
"correspondence, memoranda and statements of account in affirmant's
possession." The complaint included a paragraph that stated Wells Fargo
was "now the sole, true and lawful owner of record of the bond(s),
note(s) and mortgage(s) securing the Mortgaged Premises." This averment
was not based on information and belief and could not have been true on
the date of the verification, November 29, 2007, since the actual
execution of the assignment did not take place until December 4, 2007.
Thus, the complaint contained a misstatement of a material fact which
is not excused simply because the attorney was the one who verified the
complaint.

Note the Court's comment on the verification.  Rough.

Maldonado v Altemburger, 2009 NY Slip Op 07507 (App. Div. 1st, 2009)

This is the second action brought by plaintiff to recover damages
for injuries he allegedly sustained in a car accident. The first action
was dismissed as a nullity, because the person who was named as the
sole defendant had died before the action was commenced (see Maldonado v Law Off. of Mary A. Bjork, 64 AD3d 425
[2009]). This action must be dismissed because the named defendant is
not the personal representative of the decedent's estate (see id.; Marte v Graber, 58 AD3d 1, 3 [2008]).

It does not avail plaintiff that defendant did not cooperate
with him in his efforts to obtain the necessary documentation for a
SCPA 1002(1) petition for the appointment of an administrator.
Plaintiff apparently failed to timely seek a court order to obtain the
documentation.

Not quite a standing issue.  More of a there-isn't-anyone-to-sue issue.  Not even that.  More of a who-is-in-charge-of-this-thing issue.