CPLR § 3213

Don’t forget to preserve

WebMD LLC v Aid in Recovery, LLC, 2018 NY Slip Op 07677 [1st Dept. 2018]

Plaintiff moved not only for summary judgment on its complaint but also to dismiss the mitigation defense. Defendant failed to oppose that part of plaintiff’s motion; hence, we decline to review the arguments defendant makes about mitigation on appeal (see Callisto Pharm., Inc. v Picker, 74 AD3d 545 [1st Dept 2010]; Lally v New York City Health & Hosps. Corp., 277 AD2d 9 [1st Dept 2000], appeal dismissed 96 NY2d 896 [2001]).

Caminiti v Extell W. 57th St. LLC., 2018 NY Slip Op 07667 [1st Dept. 2018]

Contrary to plaintiff’s assertion, defendants preserved their arguments about triable issues of fact by asserting them in their memorandum of law in opposition to plaintiff’s partial summary judgment motion. However, defendants failed to preserve their argument that even if plaintiff was injured by the ladder, his conduct was the sole proximate cause of his injuries, and we decline to review this fact-sensitive argument in the interest of justice.

3213

CPLR § 3213 Motion for summary judgment in lieu of complaint

Singotiko v Kenealy, 2011 NY Slip Op 08341 (2nd Dept., 2011)

The Supreme Court properly granted the plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 based on two promissory notes. The plaintiff met her burden of establishing that the defendant executed the two notes and defaulted in making payments according to their terms (see Larry Lawrence IRA v Exeter Holding Ltd., 84 AD3d 1175, 1176; Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 789; Cutter Bayview Cleaners, Inc. v Spotless Shirts, Inc., 57 AD3d 708, 709). In opposition, the defendant failed to raise a triable issue of fact (see Levien v Allen, 52 AD3d 578; Lorenz Diversified Corp. v Falk, 44 AD3d 910; Anand v Wilson, 32 AD3d 808, 810). Moreover, while the defendant alleged the existence of several counterclaims, he failed to show that the counterclaims were related to, much less intertwined with, the subject promissory notes (see Lorber v Morovati, 83 AD3d 799, 800; Neuhaus v McGovern, 293 AD2d 727, 728; Harris v Miller, 136 AD2d 603).

Does CPLR R. 3212(f) work with CPLR R. 3123

CPLR R. 3212 Motion for summary judgment

CPLR § 3213 Motion for summary judgment in lieu of complaint

Citibank, N.A. v Silverman, 2011 NY Slip Op 04810 (App. Div., 1st 2011)

Assuming, arguendo, that CPLR 3212(f) applies to an action commenced under CPLR 3213, defendant's affidavit failed to show that "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]; see also Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 103 [2006], lv denied 8 NY3d 804 [2007]).

The motion court properly dismissed defendant's counterclaim alleging a violation of the Bank Holding Company Act (BHCA), (12 USC § 1972[1][C]). When a bank engages in traditional banking practices, it cannot be liable under the BHCA (see BC Recreational Indus. v First Natl. Bank of Boston, 639 F2d 828 [1st Cir 1980]). "The anti-tying provisions [of the BHCA] were not intended to interfere with or impede appropriate traditional banking activities through which banks safeguard the value of their investment" (In re Adelphia Communications Corp., 365 BR 24, 76 [SD NY 2007] citing Nordic Bank PLC v Trend Group Ltd., 619 F Supp 542, 554 [SD NY 1985]).

To demand additional collateral from a debtor who is in default in exchange for extending that debtor's letter of credit is well within traditional banking practices. Indeed, it is commonplace (see F.D.I.C. v Blankinship, 986 F2d 1427 [10th Cir. 1992] ["As a condition to renegotiating debts, banks can properly require additional collateral and impose other terms designed to ensure payment"] [citations omitted]). That the demand for additional collateral concerned the property of other family members does not take it out of the realm of traditional banking practices (see Sanders v First Natl. Bank & Trust Co., 936 F2d 273, 278 [6th Cir. 1987]).

Defendant's counterclaim for breach of the implied covenant of good faith and fair dealing fails because, as we have found, there was no oral forbearance agreement (see Societe Nationale D'Exploitation Industrielle Des Tabacs Et Allumettes v Salomon Bros. Intl., 251 AD2d 137 [1998], lv denied 95 NY2d 762 [2000]). Even if, arguendo, plaintiff orally agreed to forbear while the parties negotiated, we would still reject defendant's claim of bad faith on the part of plaintiff (see Massachusetts Mut. Life Ins. Co. v Gramercy Twins Assoc., 199 AD2d 214, 218 [1993]).Defendant's counterclaims for negligent misrepresentation and breach of fiduciary duty also fail. His conclusory allegations that his relationship with plaintiff was more than that of lender and borrower and that he relied on plaintiff's advice are insufficient to raise the inference that this bank-borrower relationship was special (see e.g. Korea First Bank of N.Y. v Noah Enters., Ltd., 12 AD3d 321, 323 [2004], lv denied 4 NY3d 710 [2005]). Even if, arguendo, there were a special relationship between the parties, defendant failed to raise the inference that he reasonably relied on incorrect information imparted by plaintiff (see J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007]; Global Mins., 35 AD3d at 99; P. Chimento Co. v Banco Popular de Puerto Rico, 208 AD2d 385, 385 [1994]).

Defendant also fails to make a prima facie case of age discrimination under the ECOA. Even if plaintiff raised defendant's age as an issue during negotiations, it subsequently offered him a term sheet and a loan modification agreement. As for defendant's claim of discrimination on the basis of marital status, essentially based on 12 CFR 202.7(d)(5), his own affidavit and his lawyer's affidavit show that plaintiff did not require his wife to furnish collateral. Rather, plaintiff gave defendant various options, one of which was to give plaintiff a lien against his cooperative apartment, that he co-owned with his wife.

Bond v DeMasco, 2011 NY Slip Op 04615 (App. Div., 2nd 2011)

Contrary to the plaintiffs' contention, the Supreme Court properly denied, as premature, their motion for summary judgment on the issue of liability (see CPLR 3212[f]; Lambert v Sklar, 61 AD3d 939, 940; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). The plaintiffs moved for summary judgment on the issue of liability prior to the parties' depositions. The defendants did not have an adequate opportunity to conduct discovery (see Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785). Moreover, the plaintiff Anne F. Bond and the defendant Rita J. DeMasco submitted, among other things, affidavits containing certain discrepancies pertaining to the circumstances of the subject accident (see Gardner v Cason, Inc., 82 AD3d 930; Cardone v Poidamani, 73 AD3d 828).

SJ motion in lieu of complaint: CPLR § 3213

CPLR § 3213 Motion for summary judgment in lieu of complaint

Bloom v Lugli, 2011 NY Slip Op 00635 (App. Div., 2nd 2011)

Pursuant to CPLR 3213, a party may bring a motion in lieu of complaint when the action is "based upon an instrument for the payment of money only or upon any judgment." If an instrument contains an unconditional promise to pay a sum certain over a stated period of time, it is considered an instrument for the payment of money only (see Comforce Telecom, Inc. v Spears Holdings Co., Inc., 42 AD3d 557; Gregorio v Gregorio, 234 AD2d 512).

"The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" (Weissman v Sinorm Deli, 88 NY2d 437, 444; see Ro & Ke, Inc. v Stevens, 61 AD3d 953; Stallone v Rostek, 27 AD3d 449). The test as to when a document qualifies as an instrument for the payment of money only under CPLR 3213 is as follows:

"Where the instrument requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable. Put another way, a document comes within CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms.'"

(Weissman v Sinorm Deli, 88 NY2d at 444 [citations omitted]; see Stallone v Rostek, 27 AD3d 449, 450; Larkfield Manor v KBK Enters., 5 AD3d 444, 444-445; Eisenberg v HSBC Payment Serv. (USA), 307 AD2d 950, 951).

Here, the plaintiff failed to establish that the subject agreement was an instrument for the payment of money only. The terms of the sale of the plaintiff's interest in the joint venture to the defendants was subject to the continuation by the plaintiff of his legal representation of the defendants and the joint venture. Therefore, outside proof would be required to determine if the plaintiff satisfied his obligations pursuant to the agreement (see Ippolito v Family Medicine of Tarrytown & Ossining, LLP, 46 AD3d 752, 753).

The Supreme Court failed to interpret the agreement as drafted and improperly severed the plaintiff's obligation to continue providing legal representation from the remainder of the agreement. Having done so, the Supreme Court erred in granting judgment in favor of the plaintiff on his motion brought pursuant to CPLR 3213 (see Ippolito v Family Medicine of Tarrytown & Ossining, LLP, 46 AD3d 752; Stallone v Rostek, 27 AD3d 449).

The bold is mine

CPLR § 3213 and a problem with service

CPLR § 3213 Motion for summary judgment in lieu of complaint

Engel v Boymelgreen, 2011 NY Slip Op 00348 (App. Div., 2nd 2011)

The appeal from the amended 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). The issues raised on the appeal from the amended order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

"Generally, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Washington Mut. Bank v Holt, 71 AD3d 670, 670; see Associates First Capital Corp. v Wiggins, 75 AD3d 614; City of New York v Miller, 72 AD3d 726, 727; Scarano v Scarano, 63 AD3d 716, 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983). However, a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, "generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing" (City of New York v Miller, 72 AD3d at 727; see Associates First Capital Corp. v Wiggins, 75 AD3d 614;Washington Mut. Bank v Holt, 71 AD3d 670; Scarano [*2]v Scarano, 63 AD3d 716; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343).

Here, the plaintiff's process server swore that he served the summons and motion papers upon the defendant by affixing the papers to the door of a property, which the plaintiff alleged was the defendant's dwelling place or usual place of abode, and then mailing a copy to that same address. The defendant swore that he did not reside at that address and provided an affidavit from the resident of that address which provided, in detail, that she lived at that address with her own family and had advised the plaintiff's process server that the defendant did not reside there. Thus, the defendant established that he was entitled to a hearing on the issue of service, and the Supreme Court erred in making a determination on the plaintiff's motion for summary judgment in lieu of complaint prior to conducting such a hearing (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588; Zion v Peters, 50 AD3d 894, 894; Kingsland Group v Pose, 296 AD2d 440). Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing at which the plaintiff will have to establish jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588; Zion v Peters, 50 AD3d 894).

Moreover, contrary to the plaintiff's contention, a letter dated July 8, 2008, allegedly sent to the plaintiff by the defendant—the document upon which the plaintiff moved for summary judgment in lieu of complaint—was a request for a loan and not an instrument for the payment of money only (see Weissman v Sinorm Deli, 88 NY2d 437, 444; Ro & Ke, Inc. v Stevens, 61 AD3d 953; Comforce Telecom, Inc. v Spears Holding Co., Inc., 42 AD3d 557; Stallone v Rostek, 27 AD3d 449; Gregorio v Gregorio, 234 AD2d 512). The Supreme Court erred in awarding judgment in favor of the plaintiff pursuant to CPLR 3213, as the letter did not contain an unconditional promise by the defendant to pay the plaintiff a sum certain by a set date (see Weissman v Sinorm Deli, 88 NY2d 437). Therefore, in the event that the Supreme Court, Kings County, determines, after a hearing, that it has personal jurisdiction over the defendant, the action is to proceed as a plenary action, with the motion and answering papers deemed to be the complaint and answer, respectively (see Lugli v Johnston, 78 AD3d 1133).

No-Fault with a tiny tiiiiiny tap of CPLR

caddyshack

CPLR R. 2214 Motion papers; service; time

CPLR R. 4518 Business records

22 NYCRR § 208.17 Notice of trial where all parties appear by attorney.

22 NYCRR § 208.4 Papers filed in court; index number; form; label.

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentis

CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs

A relative ton of no- fault decisions came out today from the Appellate Term, Second Department. Again, I'm not posting them because you care, but because It's easy for me to find cases when I post them. For serious discussion, head over to JT and NFP.

There are, however, some interesting procedural nuances in the decisions, making them almost relevant here.

PEERS

Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

We note, at the outset, that plaintiff's "Supplemental Affirmation in Opposition" is, in reality, a sur-reply, for the submission of which no showing of "good cause" had been made and which should not have been considered by the Civil Court and has not been reviewed on this appeal (see CPLR 2214 [c]; McMullin v Walker, 68 AD3d 943, 944 [2009]; Graffeo v Paciello, [*2]46 AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Severino v Classic Collision, 280 AD2d 463 [2001]).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Muscatello v City of New York, 215 AD2d 463 [1995]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate" (Greco v Posillico, 290 AD2d 532, 532 [2002] [citation omitted]). The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (Venetal v City of New York, 21 AD3d 1087 [2005]; Greco, 290 AD2d 532). The existence of triable issues of fact precludes a finding of a prima facie entitlement to judgment as a matter of law (Wilson-Toby v Bushkin, 72 AD3d 810 [2010]; see Brown v Outback Steakhouse, 39 AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337 [1997]; Muscatello, 215 AD2d at 464).

Although defendant's papers established, prima facie, based on objective medical evidence, that the assignor's injuries did not arise from the accident, we find that the affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.

Read JT's comments.

Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51467(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

In support of its motion for summary judgment, defendant annexed to its papers an affirmed peer review report, which found the MRIs in question to be medically unnecessary. However, also annexed to the moving papers were defendant's independent medical examination report, which found one of the MRIs to be medically necessary, and other reports that contradicted facts set forth in the peer review report. Since defendant's moving papers are contradictory as to whether there was a lack of medical necessity for the services at issue, defendant failed to establish its prima facie entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant's motion was properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

There is a Golia dissent.

Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co., 2010 NY Slip Op 51452(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

CPLR R. 3212(f)

VERIFICATION

Eagle Surgical Supply, Inc. v Travelers Indem. Co., 2010 NY Slip Op 51456(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Although defendant demonstrated that it had timely requested verification of the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to establish that plaintiff did not provide the requested verification. Defendant's litigation examiner did not even allege that the requested verification was outstanding, and defendant's attorney failed to demonstrate that she had personal knowledge to support her assertion of defendant's non-receipt of such documents (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Feratovic v Lun Wah, Inc., 284 AD2d 368, 368 [2001]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

There is a Golia "atta boy" at the end.

Total Family Chiropractic v Mercury Cas. Co., 2010 NY Slip Op 51470(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).

In an attempt to establish that the time period in which it had to pay or deny the claims was tolled due to outstanding verification requests, defendant relied upon spreadsheets annexed to the affidavit of its claim representative. However, because the claim representative did not establish that the spreadsheets constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]), defendant has not shown that it made timely verification requests.

While defendant has failed to demonstrate that it is not precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), in any event, defendant is not precluded from raising the defense of fraudulent procurement of the insurance policy (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). The certified transcripts of plaintiff's assignors' examinations under oath, annexed to defendant's motion papers, support defendant's assertion that the assignors' testimony at an examination before trial would be material and necessary to the defense of fraudulent procurement of an insurance policy (see CPLR 3101 [a]). Since plaintiff served the notice of trial two weeks after defendant served its answer and it is uncontroverted that defendant timely moved to vacate the notice of trial within 20 days of its receipt of same (see Uniform Rules for Civ Ct [22 NYCRR] § 208.17 [c]), the branch of defendant's motion seeking to strike the notice of trial is granted. However, as plaintiff's assignors are not directors, members or employees of plaintiff, defendant must subpoena them to compel their appearance at examinations before trial (see CPLR 3016 [b]; see also A.M. Med. Servs., P.C. v Allstate Inso Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order entered February 13, 2009 is vacated, the branch of defendant's motion seeking summary judgment dismissing the complaint is granted to the extent of dismissing the complaint insofar as it sought to recover upon the claim form dated March 22, 2007, the branch of defendant's motionseeking to strike the notice of trial and to compel plaintiff's assignors to attend examinations before trial is granted to the extent of striking the notice of trial, plaintiff's cross motion for summary judgment is denied, and the matter is remitted to the Civil Court for all further proceedings.

So the NOT was stricken so that defendant could issue a non-party subpoena for an EBT. What happens when the non-party doesn't appear, assuming, of course, that the non-party doesn't appear. It would make sense for the Appellate Term to provide some guidance. Read JT's comments.

Almost forgot. There is an article in the NYSBA journal on non-party discovery by David Horowitz.

Points of Health Acupuncture, P.C. v Lancer Ins. Co., 2010 NY Slip Op 51455(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

The "who cares if he doesnt know how he knows, he's a partner" exception to Fogel.

MVAIC (condition precedent or coverage or both)

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 51454(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Under the circumstances presented, the Civil Court should have considered the affidavit submitted by MVAIC's claim representative rather than sua sponte rejecting it due to a de minimis violation of Uniform Rules for the Civil Court (22 NYCRR) § 208.4. The submissions in support of MVAIC's motion for summary judgment made a prima facie showing that plaintiff's assignor had failed to timely file a notice of claim (see Insurance Law § 5208 [a]), and plaintiff failed to demonstrate that its assignor had timely filed a notice of claim or sought leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). Consequently, defendant's motion for summary judgment should have been granted. Accordingly, the judgment is reversed, the order entered February 20, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

NOT NO-FAULT

Ferrara v De Ming Song, 2010 NY Slip Op 51472(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

The Civil Court granted defendant's motion, finding that defendant had made out a prima facie case and that, among other things, the affirmed reports of plaintiff's medical provider in Florida, submitted in opposition to defendant's motion, were not in admissible form, as the doctor was not licensed in the State of New York and, thus, was not authorized to execute an affirmation under CPLR 2106. The court noted, however, that had the reports been in admissible form, they would have been sufficient to demonstrate a serious injury.

Plaintiff thereafter moved for leave to renew defendant's motion and, upon renewal, to deny defendant's motion for summary judgment on the ground that triable issues of fact exist. In support of the motion, plaintiff submitted an affidavit from his Florida medical provider, sworn to before a notary public commissioned by the State of Florida, and resubmitted the provider's reports. The Civil Court granted plaintiff's motion for leave to renew and, upon renewal, denied defendant's motion for summary judgment on the condition that plaintiff's attorneys pay the sum of $100 to defendant's attorneys as costs, and the sum of $100 to the New York State Lawyers Fund for Client Protection. This appeal by defendant ensued in which the sole issue raised is that the Civil Court erred in granting plaintiff leave to renew.

Contrary to defendant's contention, the Civil Court did not improvidently exercise its discretion in granting the branch of plaintiff's motion seeking leave to renew, thereby allowing plaintiff the opportunity to submit its papers in proper form (see CPLR 2221 [e]; Arkin v Resnick, 68 AD3d 692 [2009]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Joseph v Joseph, 24 Misc 3d 141[A], 2009 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Shaw v Looking Glass [*2]Assoc., LP, 8 AD3d 100 [2004]; Acosta v Rubin, 2 AD3d 657 [2003]; Ramos v Dekhtyar, 301 AD2d 428 [2003]). We note that defendant has raised no objection to the form of plaintiff's resubmitted papers.

Nicholas Cabrini, Inc. v Hagenbart, 2010 NY Slip Op 51443(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

CPLR 3123 (a) requires a party to respond to a notice to admit within 20 days of service of the notice "or within such further time as the court may allow," and further provides that "the party to whom the request is directed [must] serve[] upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail why he cannot truthfully either admit or deny those matters" (emphasis added).

After reviewing defendants' response to plaintiff's notice to admit, wherein defendants explained why they could not either admit or deny the first item in plaintiff's notice to admit and denied the other two items in the notice, we find that the Civil Court properly determined that defendants' response was not so evasive as to be a nullity.

Turning to the timeliness of defendants' response to the notice, in Alford v Progressive Equity Funding Corp. (144 AD2d 756 [1988]), a case analogous to the instant case, the plaintiffs moved for summary judgment on December 2, 1987, based on the defendants' failure to respond to the plaintiffs' notice to admit, which had been served on November 5, 1987. On December 7, 1987, the defendants served a response to the plaintiffs' notice to admit. The Supreme Court denied the plaintiffs' motion for summary judgment, and, on appeal, the Appellate Division, Third Department, held that the Supreme Court had properly exercised its discretionary power to extend the time within which the defendants had to respond to the plaintiffs' notice to admit. The Appellate Division further held that since the defendants had not admitted all of the material facts at issue, the Supreme Court had properly denied the plaintiffs' motion for summary judgment.

Similarly, defendants in the case at bar were 15 days late in serving their response to plaintiff's notice to admit. Thus, the Civil Court did not improvidently exercise its discretion in extending the time within which defendants had to respond to the notice. Since defendants have not admitted all of the material facts at issue, the Civil Court properly denied the branch of plaintiff's motion which sought summary judgment (see id.). Accordingly, the order, insofar as appealed from, is affirmed.

What, no cite to Dan Med? Bajaj? I'm disappointed. If any of you want to read further on the use of NTAs in no-fault. I co-authored an article in the NYLJ on the issue with Dave Barshay, the new author of NFP, and while the AT has not seen fit to cite to it, the Appellate Division has. Click here to get all the links and what not.

CPLR R. 3212(a)(f) Shennanigans and CPLR § 3213

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 § 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 § 3213–SJ in Lieu of Complaint

CPLR § 3213 Motion for summary judgment in lieu of complaint

Mendelsohn v JP Morgan Chase Bank, N.A., 2009 NY Slip Op 05304 (App. Div., 2nd, 2009)

In this action to recover on a cashier's check, the plaintiff
demonstrated his prima facie entitlement to judgment as a matter of law
by submitting a copy of the cashier's check, drawn by the [*2]defendant, on itself, and payable to him, along with proof that the defendant has refused to honor the check (see Rosenbaum v First Natl. City Bank of N.Y., 11 NY2d 845, 846; Taboada v Bank of Babylon, 95 Misc 2d 1000; see generally Northport Car Wash, Inc. v Northport Car Care, LLC, 52 AD3d 794, 795). In opposition, the defendant failed to raise a triable issue of fact with respect to a bona fide defense (see Kaufman v Chase Manhattan Bank, 370 F Supp 276, 278; Bunge Corp. v Manufacturers Hanover Trust Co., 65 Misc 2d 829, 835, mod 37 AD2d 409, affd 31 NY2d 223; see generally Studley v National Fuel Gas Supply Corp., 125 Misc 2d 956, 961; cf. U.S. Printnet v Chemung Canal Trust Co., 270
AD2d 544, 546). Accordingly, the Supreme Court properly granted the
plaintiff's motion for summary judgment in lieu of complaint (see Northport Car Wash, Inc. v Northport Car Care, 52 AD3d at 795).

The bold is mine.

CPLR § 3213; CPLR § 1001

CPLR § 3213 Motion for summary judgment in lieu of complaint

CPLR § 1001 Necessary joinder of parties

Ro & Ke, Inc. v Stevens, 2009 NY Slip Op 03501 (App. Div., 2nd, 2009)

"[A] document comes within CPLR 3213 if a prima facie case would be
made out by the instrument and a failure to make the payments called
for by its terms . . . . The instrument does not qualify if outside
proof is needed, other than simple proof of nonpayment or a similar de
minimis deviation from the face of the document" (Weissman v Sinorm Deli, 88 NY2d 437, 444 [internal quotation marks [*2]omitted]; see Stallone v Rostek,
27 AD3d 449, 450). Here, the plaintiff made a prima facie showing of
entitlement to judgment as a matter of law by proving the existence of
the subject note and nonpayment according to its terms (see Black Rock, Inc. v Z Best Car Wash, Inc., 27 AD3d 409, 409; James DeLuca, M.D., P.C. v North Shore Med. Imaging, 287 AD2d 488, 488; A. Bella Food Corp. v Luigi's Italian Deli,
243 AD2d 592, 592). In response to the plaintiff's prima facie showing,
the defendant raised a triable issue of fact regarding the validity of
the assignment under which the defendant allegedly assumed the
obligations of Hyunik Seo, a nonparty to this action, who was the
original borrower on the note. Therefore, the motion for summary
judgment in lieu of complaint should have been denied (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 402-403; Comforce Telecom, Inc. v Spears Holding Co. Inc., 42 AD3d 557; cf. Millenium Falcon Corp. v WRD Sales, Inc., 46 AD3d 862, 863).

Under the circumstances presented, Hyunik Seo, the original
borrower on the note, should have been joined as a party to this action
(see CPLR 1001[a]; cf. Friedman v Friedman, 125 AD2d 539, 540-541; Matter of Brener, 12 AD2d 452).

The bold is mine.

Halliwell v Gordon, 2009 NY Slip Op 03481 (App. Div., 2nd, 2009)

Finally, the Supreme Court erred in granting that branch of the
defendant's motion which was to dismiss the complaint, with prejudice,
on the alternative ground that the plaintiff failed to join Bumble as a
necessary party. The defendant failed to demonstrate that Bumble needed
to be a party if complete relief was to be accorded between the parties
or that Bumble would be inequitably affected by a judgment in this
action if it were not joined (see CPLR 1001[a]; Spector v Toys "R" [*3]Us, Inc., 12 AD3d 358, 359).

Leeward Isles Resorts, Ltd. v Hickox, 2009 NY Slip Op 03457 (App. Div., 1st, 2009)

Assuming the non-joined parties are necessary parties within the
meaning of CPLR 1001(a), defendant has not shown as a matter of law
that he is entitled to dismissal of the complaint for failure to join
them. Defendant contends that these parties are beyond the jurisdiction
of the court and cannot be joined. However, even if these parties were
shown to be beyond the jurisdiction of the court, consideration of the
factors enumerated in CPLR 1001(b) would support allowing the action to
proceed, especially as "dismissal for failure to join a necessary party
should eventuate only as a last resort" (L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1, 11 [2007] [internal quotation marks and citation omitted]).

The bold is mine.

De Bie v Tredegar Trust Co., 2009 NY Slip Op 03445 (App. Div., 1st, 2009)

None of the factors set forth in CPLR 1001(b) warranted proceeding
without the joinder of Joan and Alexis Jr. as necessary parties (see Nowitz v Nowitz, 37 AD3d 788
[2007]). First of all, plaintiff has an alternative forum for relief in
Virginia, where issues pertaining to the trust have been litigated for
over a decade. In its May 19, 2004 order, the Virginia court directed
the parties to "undertake to settle all remaining issues pertinent to
[Tredegar]'s prayer for aid and guidance not disposed of by this Order,
including, without limitation, undertaking to agree on a mutually acceptable division of the Trust into two parts"
(emphasis added), the very relief plaintiff seeks herein. By filing in
New York, plaintiff subverted the authority of the Virginia court,
which had agreed, in its 2004 order, to supervise settlement of the
parties' remaining disputes relating to the trust, including the
division of the trust into two parts.

Second, Joan and Alexis Jr. would be prejudiced if the New York
action were to proceed in their absence. Because plaintiff has sought
partition of his interest in the trust, his interests are not aligned
with those of his ex-wife and son. They do not stand to benefit from
the recovery of $10 million on account of alleged breaches of fiduciary
duty by the trustee; the complaint makes clear that plaintiff seeks
judgment restoring such losses "to the Plaintiff's partitioned trust,"
i.e., recovery of these sums would be for plaintiff's benefit only.

Third, plaintiff engaged in forum shopping by filing suit
against Tredegar in New York. Plaintiff concedes that he sought to
avoid litigating this case in Virginia, given that court's [*2]history of ruling "harshly" against his interest.

Fourth, it would not be feasible to fashion an appropriate
protective order. As the motion court recognized, the parties have a
"long and tortured history" in this matter, and the relief sought by
plaintiff, i.e., partition of his interest in the trust, would subvert
the terms of the settlement agreement.

Fifth, an effective judgment cannot be rendered in the absence
of Joan and Alexis Jr. The fact that plaintiff has not asserted any
claims against them is of no moment, given that the relief he seeks
would subvert the settlement agreement and, if he were to prevail,
diminish the value of their interests in the trust.

The bold is mine.