Appellate Division

Judicial Notice in a Quirky Case & CPLR R. 3212 & A Twist at the End.

Williams v Naylor, 2009 NY Slip Op 05770 (App. Div., 2nd, 2009)

The plaintiffs raise legal arguments which appear on the face of the
record and could not have been avoided had they been brought to the
attention of the Supreme Court. Accordingly, the grounds for reversal
urged by the plaintiffs may be considered by this Court even though
they have been raised for the first time on appeal (see Matter of 200 Cent. Ave., LLC v Board of Assessors, 56 AD3d 679, 680; Buywise Holding, LLC v Harris, 31 AD3d 681, 682; Matter of State Farm Mut. Auto. Ins. Co. v Olsen, 22 AD3d 673, 674; Beepat v James, 303 AD2d 345, 346; Weiner v MKVII-Westchester, 292 AD2d 597, 598; Block v Magee, 146 AD2d 730, 732; 11 Carmody-Wait 2d § 72:133, at 347-348).

The Supreme Court improperly granted the oral application of the
defendant Emeka Okeke, which was, in effect, for summary judgment
dismissing the complaint insofar as asserted against him. The oral
application was not supported by any motion papers, no formal motion
was made on notice to the plaintiff, and the application was made after
jury selection had been completed and more than 120 days after the note
of issue had been filed, without any showing of good cause (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648; Giannattasio v Han Suk Kang, 30 AD3d 375; Long v Children's Vil., Inc., 24 AD3d 518; Minucci v City of New York, 303 AD2d 473; Hilton [*2]v City of New Rochelle, 298 AD2d 360; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365, 366; Martin Iron & Constr. Co. v Grace Indus., 285 AD2d 494, 495).

In light of our discretion to "take judicial notice of a record" in "the pending matter" (Chateau Rive Corp. v Enclave Dev. Assoc., 22 AD3d 445,
446), we take judicial notice of the proceedings held on November 1,
2007, in this action. Under the circumstances of this case, upon
remittitur to the Supreme Court, Queens County, all further proceedings
in this action shall be conducted before another Justice (see Ling Fei Sun v City of New York, 55 AD3d 795, 796; Doe v Department of Educ. of City of N.Y., 54 AD3d 352, 354).

In light of our determination, the parties' remaining contentions need not be addressed.

DILLON, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.

2008-03467 DECISION & ORDER ON MOTION

Kamil Williams, etc., et al., appellants, v Margaret

Naylor, etc., et al., respondents.

(Index No. 25862/04)

Motion by the respondent on an appeal from a judgment of the
Supreme Court, Queens County, entered March 3, 2008, to strike stated
portions of the appellants' appendix and brief on the ground that the
appendix contains matter dehors the record, and that the brief refers
to matter dehors the record. By decision and order on motion of this
Court dated February 18, 2009, the motion was held in abeyance and
referred to the panel of Justices hearing the appeal for determination
upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers
filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is denied.

DILLON, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.

The bold is mine.

Wow, just Wow. Look at the last sentence in the last bolded paragraph.

CPLR R. 3212 When and Why

CPLR R. 3212

Light v Light, 2009 NY Slip Op 05847 (App. Div., 2nd, 2009)

A motion for summary judgment may be made after issue has been
joined based on CPLR 3211(a) grounds which have been asserted in the
answer (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Mann v Malasky, 41 AD3d 1136).
Accordingly, the appellant could move for summary judgment dismissing
the complaint insofar as asserted against her after she served her
answer, based upon the affirmative defense of failure to state a cause
of action (see CPLR 3211[a][7]; CPLR 3211[e]). Contrary to the
plaintiff's contention, the doctrine of the law of the case does not
apply, as the Supreme Court did not determine, on the merits, whether
the complaint stated valid causes of action on the previous motion
pursuant to CPLR 3211(a)(1) (see Kopsidas v Krokos, 18 AD3d 822; Gay v Farella, 5 AD3d 540).

…

The Supreme Court improvidently exercised its discretion in
granting that branch of the plaintiff's motion which was to preclude
certain testimony and evidence (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997; Assael v Metropolitan Tr. Auth., 4 AD3d 443), as the plaintiff failed to demonstrate that she was entitled to the drastic remedy of preclusion (see Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 24 AD3d 742).

The Supreme Court providently exercised its discretion in
denying that branch of the appellant's cross motion which was to
disqualify the plaintiff's attorney, as the appellant failed to
establish that the attorney's testimony was necessary (see Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999, 1000; Bentvena v Edelman, 47 AD3d 651).

I don't know why, but I think this decision will wind up being cited more than most of the other 3212 decisions.

The bold is mine.

CPLR § 3213

CPLR § 3213 Motion for summary judgment in lieu of complaint

Agai v Diontech Consulting, Inc., 2009 NY Slip Op 05839 (App. Div., 2nd, 2009)

The appeal from the intermediate order must be dismissed because the
right of direct appeal therefrom terminated with the entry of judgment
in the action (see Matter of Aho, 39 NY2d 241, 248). The issues
raised on the appeal from the order are brought up for review and have
been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The plaintiff established his prima facie entitlement to
judgment as a matter of law by submitting proof of the promissory note
and guarantee, and of the defendants' default (see Cutter Bayview Cleaners, Inc. v Spotless Shirts, Inc., 57 AD3d 708; Black Rock, Inc. v Z Best Car Wash, 27 AD3d 409; Brennan v Shapiro, 12 AD3d 547,
549). However, in response, the defendants showed the existence of a
triable issue of fact as to whether money allegedly owed to them in
connection with a project completed by a limited liability corporation
jointly owned by the plaintiff and the defendant Dennis Mihalatos was
retained by the plaintiff in partial satisfaction of the loan [*2]as per a subsequent agreement of the parties. Accordingly, the motion should have been denied (see Cor Rte. 5 Co., LLC v Saracene, 59 AD3d 1006; Khoury v Khoury, 280 AD2d 453).

I posted this case, not because it's particularly profound, but because you don't see too many 3213 appeals.

CPLR R. 3212; Watch your Stip (2nd to last decision)

CPLR R. 3212 Motion for summary judgment
(f) Facts unavailable to opposing party

Baines v G&D Ventures, Inc., 2009 NY Slip Op 05735 (App. Div., 2nd, 2009)

A defendant may be held liable for a slip-and-fall incident
involving snow and ice on its property upon a showing that, among other
things, the defendant had actual or constructive notice of the
allegedly dangerous condition (see Taylor v Rochdale Vil., Inc., 60 AD3d 930; Raju v Cortlandt Town Ctr., 38 AD3d 874).
Thus, "[o]n a motion for summary judgment to dismiss the complaint
based upon lack of notice, the defendant is required to make a prima
facie showing affirmatively establishing the absence of notice as a
matter of law" (Goldman v Waldbaum, Inc., 248 [*2]AD2d 436, 437). This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case, as the defendant did here (see Totten v Cumberland Farms, Inc., 57 AD3d 653; South v K-Mart Corp., 24 AD3d 748).
In support of its motion, the defendant submitted the deposition
testimony of its president, who allegedly inspected the premises on an
"almost" daily basis. However, the defendant's president failed to
provide any testimony as to when he last inspected the subject sidewalk
prior to the accident or what it looked like when he last inspected it.
Further, the mere fact that the icy condition which allegedly caused
the plaintiff to fall was open and obvious does not preclude a finding
of liability, but rather raises an issue of fact regarding comparative
negligence (see Sewitch v Lafrese, 41 AD3d 695; Ettari v 30 Rampasture Owners, Inc., 15 AD3d 611).

Accordingly, the defendant failed to meet its initial burden as
the movant, and the Supreme Court should have denied its motion for
summary judgment dismissing the complaint insofar as asserted against
it. Since the defendant did not meet its initial burden, we need not
review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Financial Freedom Senior Funding Corp. v Rose, 2009 NY Slip Op 05745 (App. Div., 2nd, 2009)

There was no need to join the estate of the now-deceased mortgagor,
the father of the respondents Steven Rose and Debra Rosenberg, as it
appears that he died intestate and the complaint does not seek a
deficiency judgment (see Countrywide Home Loans, Inc. v Keys, 27 AD3d 247; Winter v Kram, 3 AD2d 175).

However, the Supreme Court properly denied summary judgment to
the plaintiff, although the motion should have been denied without
prejudice to renewal upon completion of discovery. The respondents
alleged that the now-deceased mortgagor was incompetent when he
executed the subject loan, and that the plaintiff knew or should have
known of the incompetence, which, if both facts are proven, would
constitute a basis to void this transaction (see Ortelere v Teachers' Retirement Bd., 25 NY2d 196; Matter of Loretta I., 34 AD3d 480; see generally Peterson v Spartan Ind., 33 NY2d 463, 465-466; Matter of People v Jaguar Sales, LLC, 61 AD3d 872; Benfeld v Fleming Props, LLC, 38 AD3d 814; Ying Jun Chen v Lei Shi, 19 AD3d 407).
Since the respondent Steven Rose set out a sufficient basis for his
inability to include medical evidence as to the decedent's mental
capacity in his opposition papers, further discovery was warranted.

Woods v 126 Riverside Dr. Corp., 2009 NY Slip Op 05634 (App. Div., 1st, 2009)

Insofar as plaintiffs claim that the motion was premature, they failed
to show that facts essential to the motion were in defendants'
exclusive knowledge or that discovery might lead to facts relevant to
the issues (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557
[2007]). Since plaintiffs were relying on statements they claim were
made to them by defendants' representatives, such facts were not within
defendants' exclusive knowledge.

Corchado v City of New York, 2009 NY Slip Op 05642 (App. Div., 1st, 2009)

The parties' so-ordered stipulation clearly provided that summary
judgment motions were "to be filed" within 60 days of the filing of the
note of issue. Since the note of issue was filed on October 24, 2007,
summary judgment motions were to be filed by December 23, 2007. While
Hallen served its motion on December 21, 2007, it did not file the
motion until January 4, 2008. Plaintiff's opposition asserted the
untimeliness of Hallen's motion, to which Hallen replied that its
motion was timely because served within 90 days of the filing of the
note of issue. We reject Hallen's argument that CPLR 3212(a) authorizes
a court to set a deadline only for the making, i.e., service, not the
filing, of summary judgment motions (see e.g. Corbi v Avenue Woodward Corp.,
260 AD2d 255, 255 [1999]) because the parties, with the court's
consent, were free to chart a procedural course that deviated from the
path established by the CPLR (see Katz v Robinson Silverman Pearce Aronsohn & Berman LLP,
277 AD2d 70, 73 [2000] ["Parties are afforded great latitude in
charting their procedural course through the courts, by stipulation or
otherwise"] [internal citations omitted]). Thus, we affirm the denial
of Hallen's motion as untimely since Hallen offered no excuse for the
late filing (see Brill v City of New York, 2 NY3d 648, 652 [2004]), and we decline to consider Hallen's contention that good cause exists to [*2]consider
the motion because the parties misread the so-ordered stipulation and
believed that the 60-day deadline applied to the serving, not the
filing, of summary judgment motions. That contention was raised
improperly for the first time on appeal. In view of the foregoing, we
decline to reach the merits of Hallen's motion.

Not something you see very often.

Braudy v Best Buy Co., Inc., 2009 NY Slip Op 05499 (App. Div., 2nd, 2009)

"To meet its initial burden on the issue of lack of constructive
notice, the defendant must offer some evidence as to when the area in
question was last cleaned or inspected relative to the time when the
plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598,
598-599). Since the defendant failed to do so here, the Supreme Court
correctly denied the defendant's motion without regard to the
sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

The bold is mine.

Parol Evidence

Beagle Developers, LLC v Long Is. Beagle Club #II, Inc., 2009 NY Slip Op 05258 (App. Div., 1st, 2009)

Nor were the contract's unambiguous terms modified by defendant's
attempt to accommodate plaintiff's requests for documents relating to
the merger. The contract clearly states that a waiver of any right at
one time does not waive any right at any other time, and further states
that the contract may only be modified in writing. Plaintiff cannot
negate these unambiguous terms by parol evidence (see Namad v Salomon, 74 NY2d 751, 753 [1989]; Rose v Spa Realty Assoc.,
42 NY2d 338, 343 [1977]).

The bold is mine

Another Sighting of the Rare Motion to Replead (CPLR R. 3211(e))

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(e) Motion to replead

For some much needed background on this procedural novelty read Janssen v Incorporated Vil. of Rockville Ctr., 2008 NY Slip Op 09962 (App. Div., 2nd). For the shorter, highlighted version, click HERE.

Clark v Pfizer, Inc., 2009 NY Slip Op 05743 (App. Div., 2nd, 2009)

The defendant correctly contends that the appeal from the order
dated November 2, 2007, must be dismissed, inasmuch as the plaintiff
failed to file a notice of appeal within 35 days after service upon him
by mail of that order with notice of entry (see CPLR 2103[b][2]; 2103[c], 5513[a]; Matter of Wei v New York State Dept. of Motor Vehs., 56 AD3d 484, 485; Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417; Matter of Eagle Ins. Co. v Soto, 254 AD2d 483).

Moreover, the Supreme Court properly denied that branch of the
plaintiff's motion which was, in effect, for leave to replead so as to
assert a cause of action to recover damages for discrimination in the
terms, privileges, and conditions of employment in violation of
Executive Law [*2]§ 296. A motion
for leave to replead, although now constituting little more than a
"poor substitute" or "arcane alternative" to a motion for leave to
amend a pleading under CPLR 3025(b) (Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 19), is still cognizable and is not expressly "constrained by any time limitation" (id.).
Nonetheless, in the matter before us, the proposed complaint, as sought
to be repleaded, is palpably insufficient and patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 226-227; see also Barnum v New York City Tr. Auth., 62 AD3d 736).

The bold is mine.

22 NYCRR 202.42(a): To Bifurcate or Not to Bifurcate

22 NYCRR 202.42(a) Bifurcated Trials

Carbocci v Lake Grove Entertainment, LLC, 2009 NY Slip Op 05739 (App. Div., 2nd, 2009)

Trial courts are encouraged to conduct bifurcated trials in personal injury cases (see 22
NYCRR 202.42[a]). However, where the nature of the plaintiff's injuries
has an important bearing on the question of liability, a unified trial
should be held (see Wahid v Long Is. R.R. Co., 59 AD3d 712; Wright v New York City Hous. Auth., 273
AD2d 378). The party opposing bifurcation has the burden of showing
that the nature of the injuries necessarily assists the factfinder in
making a determination with respect to the issue of liability (see Barrera v Skaggs-Walsh, Inc., 279 AD2d 442).

Here, the plaintiff, Dolores Carbocci (hereinafter Carbocci),
fell while ice skating at a rink owned and operated by the defendant
Lake Grove Entertainment, LLC, doing business as Sports Plus
(hereinafter Sports Plus). The plaintiffs alleged that Carbocci was
removed from the ice [*2]by the defendant
Patrick Lever, an employee of Sports Plus, either negligently or
forcibly, despite Carbocci's instructions to not touch her and to call
an ambulance. The defendants assert that Carbocci stood up on her own
and was merely assisted from the ice by Lever and other employees of
Sports Plus. The plaintiffs moved for a unified trial asserting that
evidence with respect to her medical treatment was necessary to prove
her case. The Supreme Court denied the motion and, sua sponte, directed
the trial court to give a particular preliminary instruction to the
jury relating to the bifurcation of the case. We reverse.

The plaintiffs established that Carbocci's injuries are
interwoven with the existence or extent of the defendants' liability on
both the negligence and battery causes of action (see Sokolovsky v Mucip, Inc., 32 AD3d 1011). Evidence relating to Carbocci's injuries is probative in determining how the incident occurred (see Byrd v New York City Tr. Auth., 172 AD2d 579, 581; DeGregorio v Lutheran Med. Ctr., 142
AD2d 543). Accordingly, the plaintiffs' request for a unified trial was
improperly denied as the issues of liability and damages are
inseparable (see Jacobs v Broidy, 88 AD2d 904; cf. Pasquaretto v Cohen, 37 AD3d 440).

In light of the foregoing, the preliminary instruction the
Supreme Court directed the trial court to give to the jury is
unnecessary.

The bold is mine.

Standing Waived; CPLR R. 3211(e)

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

Lot 57 Acquisition Corp. v Yat Yar Equities Corp., 2009 NY Slip Op 05512 (App. Div., 2nd, 2009)

Since the defendant Yat Yar Equities Corp. (hereinafter Yat Yar) did
not raise the defense of lack of standing in a timely motion to dismiss
the complaint or in its responsive pleading, that defense is waived (see CPLR 3211[e]; Gager v White, 53 NY2d 475, 488, cert denied 454 US 1086; Aames Funding Corp. v Houston, 57 AD3d 808, 809).

Standing can be waived through other, less obvious, means. See, Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 (Ct. App., 2008). Fair Price can of course be limited to it facts. Can it be expanded outside no-fault, to other statutory or contract driven arenas.

Experts and Their Reports. And a Engineer’s Report that Made its Way into Evidence

Starting last first, here we go.

McPartlan v Basile, 2009 NY Slip Op 05521 (App. Div., 2nd, 2009)

Contrary to the appellants' contention, the engineer's report was
admitted into evidence, and properly so, not to prove the truth or
accuracy of its contents, but to establish that the plaintiffs had a
good faith basis for determining that the report was unacceptable.
Furthermore, the record supports the conclusion that the plaintiffs
did, in fact, act in good faith, and thus their termination of the
contract of sale pursuant to Paragraph 39 of the contract was valid (see Hirsch v Food Resources, Inc., 24 AD3d 293, 296; Tradewinds Fin. Corp. v Refco Sec., 5 AD3d 229, 230-31; Richbell Info. Sers. v Jupiter Partners,
309 AD2d 288, 302). Accordingly, the Supreme Court properly determined
that the plaintiffs were entitled to the return of their down payment.

Yun v Barber, 2009 NY Slip Op 05535 (App. Div., 2nd, 2009)

The plaintiffs' remaining submissions did not constitute admissible evidence since they were unsworn (see Grasso v Angerami, 79 NY2d 813; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644).

Vickers v Francis, 2009 NY Slip Op 05540 (App. Div., 2nd, 2009)

Initially, the X ray report dated September 22, 2006, the magnetic
resonance imaging (hereinafter MRI) reports of Dr. Robert Diamond, the
medical records from Alliance Medical Office, the plaintiff's emergency
room and hospital records, and the reports of Dr. Nunzio Saulle dated
August 31, 2006, and October 19, 2006, were not in admissible form
because they were unsworn (see Grasso v Angerami, 79 NY2d 813, 814-815; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644; Uribe-Zapata v Capallan, 54 AD3d 936, 937; Choi Ping Wong v Innocent, 54 AD3d 384, 385).

The affirmed medical reports of Dr. Saulle were insufficient to
raise a triable issue of fact as to whether the plaintiff sustained a
serious injury to her cervical or lumbar spine as a result of the
subject accident. Neither the plaintiff nor Dr. Saulle proffered
competent objective medical evidence revealing the existence of a
significant limitation in either region of the plaintiff's spine that [*2]was contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45
AD3d 525). Furthermore, in reaching his conclusion in his affirmed
medical reports, Dr. Saulle clearly relied on the unsworn MRI reports
of Dr. Diamond (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216
AD2d 266, 267). Moreover, Dr. Saulle failed to address, in any of his
affirmed reports, the fact that the plaintiff injured her neck and back
in a subsequent accident in October 2007. His failure to address that
accident and the resulting injuries rendered speculative his
conclusions that the range of motion limitations he noted in the
plaintiff's cervical and lumbar regions after October 2007 were caused
by the subject accident (see Donadio v Doukhnych, 55 AD3d 532; Seck v Minigreen Hacking Corp., 53 AD3d 608).

Wartski v C.W. Post Campus of Long Is. Univ., 2009 NY Slip Op 05115 (App. Div., 2nd, 2009)

In opposition, the plaintiff failed to raise a triable issue of fact
as to whether the defendant had actual notice of a recurring dangerous
condition such that it could be charged with constructive notice of
each specific recurrence of that condition (see Erikson v J.I.B. Realty Corp., 12 AD3d 344, 346; Weisenthal v Pickman,
153 AD2d 849, 851). Here, at most, the evidence submitted by the
plaintiff established that the defendant had only a general awareness
that the stairs became wet when ice and snow was tracked into the
building, which was insufficient to establish constructive notice of
the particular condition which caused the plaintiff to fall (see Arrufat v City of New York, 45 AD3d 710; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656; Andujar v Benenson Inv. Co., 299 AD2d at 504; Yearwood v Cushman & Wakefield, Inc., 294 AD2d 568, 569).

The plaintiff's expert affidavit should not have been considered
in determining the motion since the expert was not identified by the
plaintiff until after the note of issue and certificate of readiness
were filed attesting to the completion of discovery, and the plaintiff
offered no valid excuse for her delay [*2]in identifying the expert (see CPLR 3101[d][1]; Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863; Gerry v Commack Union Free Sch. Dist., 52 AD3d 467, 469; Gralnik v Brighton Beach Assocs., LLC, 3 AD3d 518; Dawson v Cafiero,
292 AD2d 488). In any event, even if the plaintiff's expert affidavit
could have properly been considered, the result would not have been
different.

The bold is mine.

CPLR R. 3025(b) Leave to Amend Granted on Eve of Trial

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

Reyes v City of New York, 2009 NY Slip Op 05267 (App. Div., 1st, 2009)

The trial court providently exercised its discretion in granting
plaintiff leave to amend her pleadings on the eve of trial to allege
prior written notice, where such amendment did not prejudice or
surprise defendant (CPLR 3025[b]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Mezzacappa Bros., Inc v City of New York, 29 AD3d 494 [2006], lv denied
7 NY3d 712 [2006]). Plaintiff alleged actual notice in her initial
pleadings, and based on the service of a notice to admit attaching the
Big Apple Map and receipt of the map by the Department of
Transportation, defendant was aware at least five years prior to trial
that plaintiff [*2]intended to rely upon prior written notice.

ADA Dining Corp. v 208 E. 58th St., LLC, 2009 NY Slip Op 05173 (App. Div., 1st, 2009)

The court exercised its discretion in a provident manner in granting
the cross motion to amend the complaint (CPLR 3025[b]), and in
declining to dismiss said amended complaint as materially different
from the proposed amended complaint inasmuch as the new claims had
merit and were properly pleaded (see Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989]; Peach Parking Corp. v 346 W. 40th St., LLC, 42 AD3d 82,
86 [2007]). There was no surprise since the court had not only
discussed the issue of accord and satisfaction in its decision, but the
amended complaint was in accordance with the June 3, 2008 order, which
specifically permitted plaintiffs to include the allegations contained
in the discontinued Florida action.

Furthermore, the allegations of accord and satisfaction
sufficiently pleaded the existence of a written and signed accord
(General Obligations Law § 15-501[2]), based upon the August 2007
agreement which included an option to purchase the building at a set
price that purportedly subsumed the claimed overdue rent (see Porthos v Arverne Houses,
269 AD2d 377 [2000] [party seeking to establish an accord and
satisfaction must show a disputed claim which the parties mutually
resolved through a new contract discharging all or part of prior
contractual obligations]).

The bold is mine