CPLR R. 3211 – Page 4

3211(a)(5): Judgment on consent

CPLR R. 3211 Motion to dismiss

(a)(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

Vitarelle v Vitarelle, 2011 NY Slip Op 08351 (2nd Dept., 2011)

"Under the doctrine of res judicata, a final disposition on the merits bars litigation between the same parties of all other claims arising out of the same transaction or out of the same or related facts, even if based upon a different theory involving materially different elements of proof. The rule applies not only to claims litigated but also to claims that could have been raised in the prior litigation" (Matter of City of New York v Schmitt, 50 AD3d 1032, 1033 [citations omitted]; see Osborne v Rossrock Fund II, L.P., 82 AD3d 727, 727-728; Shelley v Silvestre, 66 AD3d 992, 993).

In a prior action, the plaintiff consented to the entry of a judgment in favor of the defendant Richard Vitarelle, Jr., and against him on his counterclaim for possession of the subject property (see Vitarelle v Vitarelle, 65 AD3d 1035). "[A] judgment on consent is conclusive and has the same preclusive effect as a judgment after trial" (Silverman v Leucadia, Inc., 156 AD2d 442, 443; see Prudential Lines v Firemen's Ins. Co. of Newark, N.J., 91 AD2d 1, 3). The claims asserted in the instant complaint were raised or could have been raised in the prior action, which was disposed of on the merits. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the action is barred by the doctrine of res judicata (see Cypress Hills Cemetery v City of New York, 67 AD3d 853, 854; Shelley v Silvestre, 66 AD3d at 993).

CE waived and a late SJ

Ofman v Ginsberg, 2011 NY Slip Op 08334 (2nd Dept., 2011)

Although the defendant characterized his motion as one for in limine relief, he argued that the cause of action alleging legal malpractice could not be maintained because of collateral estoppel (see CPLR 3211[a][5]). Notably, he did not raise this objection or defense in either his answer or his original motion to dismiss the complaint (see CPLR 3211[e]). Accordingly, the defense based on the doctrine of collateral estoppel was waived (id.). Under the circumstances, we agree with the plaintiff that the defendant's trial motion was, in effect, an untimely motion for summary judgment (see West Broadway Funding Assoc. v Friedman, 74 AD3d 798, 798; Brewi-Bijoux v City of New York, 73 AD3d 1112, 1113; Matter of City of New York v Mobil Oil Corp., 12 AD3d 77, 80-81; Rivera v City of New York, 306 AD2d 456, 456-457; Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 811) based on a defense that was waived (see CPLR 3211[e]). "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" (Rondout Elec. v Dover Union Free School Dist., 304 AD2d at 810-811). Moreover, the Supreme Court improvidently exercised its discretion in considering this motion since the defendant failed to offer any excuse for the untimely submission of the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648). As the motion should have been denied, we reverse the judgment and reinstate the complaint (see Brewi-Bijoux v City of New York, 73 AD3d at 1113).

Punitive

Felton v Tourtoulis, 2011 NY Slip Op 06472 (2nd Dept., 2011)

The Supreme Court improperly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the plaintiff's demand for punitive damages insofar as asserted against the defendant driver. "Punitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton, or malicious conduct aimed at the public generally, or were activated by evil or reprehensible motives" (Boykin v Mora, 274 AD2d 441, 442). At this stage of the litigation, it is premature to conclude that the allegations in the complaint are insufficient to support a claim that the defendant driver acted so recklessly or wantonly as to warrant an award of punitive damages (see Wilner v Allstate Ins. Co., 71 AD3d 155, 167). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the plaintiff's demand for punitive damages insofar as asserted against the defendant driver.

CPLR R. 3211(a)(1) and (7): good language on 7

Pre answer (we are unwilling) and renew

Rowe v Nycpd, 2011 NY Slip Op 05477 (2^nd Dept. 2011)

However, after affording the plaintiff's allegations every possible favorable inference, we are unwilling to determine at this pre-answer stage of the litigation that the plaintiff has failed to assert claims alleging violations of federal civil and constitutional rights under color of state law, especially where, as here, the pleading is not being challenged for its sufficiency pursuant to CPLR 3211 (see 42 USC § 1983; see generally Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d 1450; Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192).

Accordingly, the Supreme Court's dismissal of the complaint based on the plaintiff's failure to timely serve a notice of claim was proper except to the extent it dismissed the plaintiff's cause of action to recover damages for violation of his federal civil and constitutional rights under color of state law (see Dorce v United Rentals N. Am., Inc., 78 AD3d 1110; Pendleton v City of New York, 44 AD3d 733).

The Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendants' motion to dismiss the complaint. "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Elder v Elder, 21 AD3d 1055, 1055; Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727). A motion for leave to renew must be based upon new facts, not offered on the original application, "that would change the prior determination" (CPLR 2221[e][2]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d 882, 884). The new or additional facts must have either not been known to the party seeking renewal (see Matter of Shapiro v State of New York, 259 AD2d 753) or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion (see Cole-Hatchard v Grand Union, 270 AD2d 447). However, in either instance, a "reasonable justification" for the failure to present such facts on the original motion must be presented (CPLR 2221[e][3]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d at 884). What constitutes a "reasonable justification" is within the Supreme Court's discretion (Heaven v McGowan, 40 AD3d 583). Here, the Supreme Court did not improvidently exercise its discretion in denying leave to renew. Where, as here, the "new evidence" consists of documents which the plaintiff knew existed, and were in fact in his own possession at the time the initial motion was made, no reasonable justification exists for the plaintiff's failure to exercise due diligence by submitting the documents in the first instance (see generally May v May, 78 AD3d 667; Huma v Patel, 68 AD3d 821, 822).

3211(a)(1)(7)

Cog-Net Bldg. Corp. v Travelers Indem. Co., 2011 NY Slip Op 06014 (2^nd Dept., 2011)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence submitted by the movant utterly refutes the plaintiff's allegations against it and conclusively establishes a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 811; Fontanetta v John Doe, 73 AD3d 78, 83). Here, the documentary evidence submitted by the appellant failed to satisfy this standard, and the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it.

Furthermore, "[i]n considering 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'" (Ascani v EI Du Pont de Nemours & Co.,AD3d, 2011 NY Slip Op 05210 [2d Dept 2011], quoting Sokol v Leader, 74 AD3d 1180, 1181; see Leon v Martinez, 84 NY2d 83, 87-88). "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" (Rietschel v Maimonides Med. Ctr., 83 AD3d at 810; see Guggenheimer v Ginzberg, 43 NY2d 268, 275; Sokol v Leader, 74 AD3d at 1180-1181). The [*2]plaintiff alleged in its complaint that it had a relationship with the appellant "so close as to approach that of privity" (Sykes v RFD Third Ave. 1 Assoc., LLC, 15 NY3d 370, 372 [internal quotation marks omitted]). Since the appellant failed to show that this material fact alleged by the plaintiff was not a fact at all, and failed, moreover, to demonstrate that no significant dispute exists regarding the allegation, the appellant was not entitled to dismissal of the causes of action sounding in negligent misrepresentation and negligent failure to procure insurance (cf. Sykes v RFD Third Avenue. 1 Assoc., LLC, 15 NY3d 370; Benjamin Shapiro Realty Co. v Kemper Natl. Ins. Cos., 303 AD2d 245, 245-246). Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

Mason v First Cent. Natl. Life Ins. Co. of N.Y., 2011 NY Slip Op 06010 (3^rd Dept. 2011)

As to defendant's argument that this claim failed to state a cause of action (see CPLR 3211 [a] [7]), we disagree. The question to be resolved on such a motion is not whether plaintiff "can ultimately establish [her] allegations" and is likely to prevail, but whether, if believed, her complaint sets forth facts that constitute a viable cause of action (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Crepin v Fogarty, 59 AD3d at 838)^[FN1]. Here, the allegations in the complaint, if accepted as true and accorded the benefit of every favorable inference, state such a claim (see Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004]). Accordingly, defendant's motion to dismiss plaintiff's first cause of action on this ground must be denied.

Venue and Jurisdiction

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Non Con

CPLR R. 327 Inconvenient forum

CRT Invs., Ltd. v BDO Seidman, LLP, 2011 NY Slip Op 04816 (App. DIv., 1st 2011)

This litigation arises out of plaintiffs' investment in the Ascot Fund, Limited, a Cayman Islands hedge fund audited by BDO Tortuga, which was a "feeder fund" for Ascot Partners, L.P., a New York hedge fund audited by BDO Seidman. Plaintiffs asserted causes of action for fraud, aiding and abetting fraud, negligence, and gross negligence against these outside auditors for failing to disclose that the fund was ultimately managed by Bernard Madoff.

Plaintiffs failed to meet their burden of demonstrating the existence of personal jurisdiction over BDO Tortuga under New York's long arm statute (Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 95 [2010]). Plaintiffs failed to rebut defendant's affidavit (see Roldan v Dexter Folder Co., 178 AD2d 589, 590 [1991]), which established that BDO Tortuga has no presence in New York, that it performed the audit of the Ascot Fund in the Cayman Islands, pursuant to engagement letters executed in, and sent from, the Cayman Islands, and that there were only limited emails with anyone in New York "affiliated in any way with Ascot Fund." Although plaintiffs argue that BDO Tortuga relied upon the audit work that BDO Seidman had performed with respect to the existence and valuation of Ascot Partners and Ascot Fund's investments, there is no basis to conclude that BDO Tortuga should have reasonably expected to defend its actions in New York (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 466 [1988]). All of the relevant parties to the cause of action (plaintiff, defendant, and audit client), and all of the work that BDO Tortuga performed were in the Cayman Islands. Nor does sending a few emails and engagement letters into New York alter this result (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434 [2006], lv denied 9 NY3d 803 [2007]).

Plaintiffs' alternative argument, that BDO Tortuga is subject to personal jurisdiction under CPLR 302(a)(3), is also unavailing. In the context of a commercial tort, where the damage is solely economic, the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred (see O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 201-02 [2003]; Mid-Atlantic Residential Invs. Ltd. Partnership v McGuire, 166 AD2d 205, 206-07 [1990]). Plaintiff's claim that it was sold the investment in New York is irrelevant, because the injury did not arise out of its purchase of the investment here, but, rather, out of BDO Tortuga's alleged failure to appropriately perform its audit services. Defendants' affidavit also established that BDO Tortuga did not derive "substantial revenue" from interstate or international commerce (see LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]).

Berk v Linnehan, 2011 NY Slip Op 04820 (App. Div., 1st 2011)

The court properly denied defendants' motion for a change of venue to Suffolk County. Defendants failed to make the requisite showing that their allegedly inconvenienced non-party witnesses were actually contacted and were willing to testify (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]; Gluck v Pond House Farm, Inc., 271 AD2d 334 [2000]; CPLR 510[3]). Defendants also failed to set forth the substance and materiality of the testimony of at least two of the three witnesses.

Koskar v Ford Motor Co., 2011 NY Slip Op 04636 (App. Div., 2nd 2011)

The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that "in the interest of substantial justice the action should be heard in another forum" (CPLR 327[a]). The defendant bears the burden on a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479, cert denied 469 US 1108). "On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system" (Tiger Sourcing Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002, 1003; see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966). No one factor is dispositive (see Turay v Beam Bros. Trucking, Inc., 61 AD3d at 966; Brinson v Chrysler Fin., 43 AD3d 846, 848). The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Smolik v Turner Constr. Co., 48 AD3d 452, 453-454; Brinson v Chrysler Fin., 43 AD3d at 848).

Here, the defendant Sail Trans Corp. failed to meet its burden of establishing that New York is an inconvenient forum for this consolidated action. Thus, the Supreme Court's determination denying that branch of its motion which was to dismiss the complaint insofar as asserted against it on the ground of forum non conveniens was not an improvident exercise of discretion (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Salzstein v Salzstein, 70 AD3d 806; Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028).

That branch of the appellant's motion which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(4) was not addressed by the Supreme Court and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543).

U.S. Bank, Natl. Assn. v Arias, 2011 NY Slip Op 05487 (App. DIv., 2nd 2011)

By order to show cause dated January 27, 2010, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The Supreme Court denied the defendant's motion in its entirety, without conducting a hearing. We reverse.

"A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370).

Here, the Supreme Court erred in determining the defendant's motion without first conducting a hearing. The process server's affidavits constituted prima facie evidence of proper service (see Scarano v Scarano, 63 AD3d at 716). However, to rebut that showing, the defendant submitted a sworn denial of service containing specific facts to rebut the presumption of proper service. Furthermore, in replying to contentions raised by the plaintiff in its opposition papers, the defendant submitted documentary evidence supporting his claim that he did not reside at the subject premises or at the Long Island City address in 2008. The defendant's submission was sufficient to rebut the prima facie showing of proper service, and to necessitate a hearing. Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308(2), and for a new determination thereafter of his motion to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

Sufficient Start

Marist Coll. v Brady, 2011 NY Slip Op 04638 (App. Div., 2nd 2011)

Under the circumstances, the Supreme Court properly exercised its discretion in deciding, on the merits, that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (see Fugazy v Fugazy, 44 AD3d 613, 614). As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden of proof on this issue (see Alden Personnel, Inc. v David, 38 AD3d 697, 698; Brandt v Toraby, 273 AD2d 429, 430). To successfully oppose a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, the plaintiff did not need to make a prima facie showing of jurisdiction, but instead only needed to set forth "a sufficient start, and [show its] position not to be frivolous" (Peterson v Spartan Indus., 33 NY2d 463, 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624; American BankNote Corp. v Daniele, 45 AD3d 338, 340; Cordero v City of New York, 236 AD2d 577, 578).

Since the plaintiff established that facts " may exist'" to exercise personal jurisdiction over the appellants and has made a "sufficient start" to warrant further discovery on that issue, the Supreme Court properly denied that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (Peterson v Spartan Indus., 33 NY2d at 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624; Castillo v Star Leasing Co., 69 AD3d 551, 552; cf. Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794; Roldan v Dexter Folder Co., 178 AD2d 589, 589). However, since the plaintiff failed to demonstrate, prima facie, that the appellants were subject to the Supreme Court's long-arm jurisdiction pursuant to CPLR 302(a)(3)(ii) (cf. Alden Personnel, Inc. v David, 38 AD3d at 698), we modify the order appealed from to allow the appellants to seek dismissal of the complaint pursuant to CPLR 3211(a)(8) upon the completion of discovery (see Ying Jun Chen v Lei Shi, 19 AD3d 407, 407-408; Lettieri v Cushing, 80 AD3d 574, 575-576).

HBK Master Fund L.P. v Troika Dialog USA, Inc., 2011 NY Slip Op 05569 (App. Div., 1st 2011)

Plaintiffs made a "sufficient start" in demonstrating that the Russian defendants were doing business in New York through their direct or indirect subsidiaries to warrant further discovery on the issue of personal jurisdiction, including whether the parents exercised control over the subsidiaries and are therefore subject to New York's long-arm jurisdiction (see Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]; Edelman v Taittinger, S.A., 298 AD2d 301, 302 [2002]).

OrthoTec, LLC v Healthpoint Capital, LLC, 2011 NY Slip Op 04533 (App. Div., 1st 2011)

We do not find that "in the interest of substantial justice the action should be heard in" France (see CPLR 327[a]). "Generally, unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed" (Anagnostou v Stifel, 204 AD2d 61, 61 [1994] [internal quotation marks and citations omitted]). This is true even though plaintiff is not a New York resident (see Travelers Cas. & Sur. Co. v Honeywell Intl. Inc., 48 AD3d 225, 226 [2008]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). The fact that defendants are New York residents weighs against forum non conveniens dismissal (see e.g. Anagnostou, 204 AD2d at 62). Even if some documents will have to be translated from French into English, that does not require dismissal (see e.g. American BankNote Corp. v Daniele, 45 AD3d 338, 340 [2007]).

The Civil Court can handle it: CPLR R. 3211(a)(4)

CPLR R. 3211(a)(4) there is another action pending between the same parties for the same cause of action in a court of any state or the United States

DAIJ, Inc. v Roth, 2011 NY Slip Op 05446 (App. Div., 2nd 2011)

Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same (see Whitney v Whitney, 57 NY2d 731, 732; Kent Dev. Co. v Liccione, 37 NY2d 899, 901; Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 622; Liebert v TIAA-CREF, 34 AD3d 756, 757). "The critical element is that both suits arise out of the same subject matter or series of alleged wrongs" (Cherico, Cherico & Assoc. v Midollo, 67 AD3d at 622 [internal quotation marks omitted]; see Kent Dev. Co. v Liccione, 37 NY2d at 901).

This action and an action pending in the Civil Court of the City of New York both arise from the same subject matter and alleged wrongs, and involve substantial identity of the parties and similarity of claims. The plaintiff's claims may be fully litigated in the Civil Court action. Accordingly, on the record presented, the Supreme Court providently exercised its discretion in granting the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(4) (see Cherico, Cherico & Assoc. v Midollo, 67 AD3d at 623; Liebert v TIAA-CREF, 34 AD3d at 757).

3211(e): Standing waived, and other 3211 shenanigans

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

1007

1008

JP Morgan Chase Bank, N.A. v Strands Hair Studio, LLC, 2011 NY Slip Op 04424 (App. DIv., 2nd 2011)

Contrary to the third-party defendant's contention, the Supreme Court properly denied that branch of her motion which was for summary judgment dismissing the main complaint on the ground that the plaintiff lacked standing. Although a third-party defendant has the right to assert against the plaintiff "any defenses which the third-party plaintiff has to the plaintiff's claim" (CPLR 1008), here, the third-party defendant failed to raise the issue of the plaintiff's standing in a pre-answer motion to dismiss or as an affirmative defense in her answer. Thus, she waived her right to raise the argument at all subsequent phases of the litigation pursuant to CPLR 3211(e) (see Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817, 817-818, cert deniedUS, 131 S Ct 648; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 625; HSBC Bank, USA v Dammond, 59 AD3d 679, 680; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241-243; Gilman v Abagnale, 235 AD2d 989, 990).

The Supreme Court also properly denied that branch of the third-party defendant's motion which was for summary judgment dismissing the main complaint on the ground that the plaintiff's service upon the defendant Strands Hair Studio, LLC (hereinafter the LLC) did not comport with Business Corporation Law § 306 (b)(1). Even assuming that the third-party defendant did not waive this objection by failing to raise it in her answer or in a pre-answer motion to dismiss (see CPLR 3211[e]), the court's personal jurisdiction over the LLC is not a "defense[] which the third-party plaintiff has to the plaintiff's claim," and, accordingly, it is not a defense the third-party defendant is entitled to raise here pursuant to CPLR 1008.

The Supreme Court also properly denied that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint. Contrary to the third-party defendant's contention, the third-party plaintiff's claims against her may be asserted pursuant to CPLR 1007. CPLR 1007 "should not be read as allowing recovery solely for claims sounding in strict indemnity" (George Cohen Agency v Donald S. Perlman Agency, 51 NY2d 358, 365). The statute "places no limit . . . upon the legal theories which may be asserted as a basis for the claim" (id. at 365), and "[t]he third-party complaint may be based on a theory of liability different from and independent of the cause of action pleaded against the primary defendant" (Zurich Ins. Co. v White, 129 AD2d 388, 390, citing Garrett v Holiday Inns, 58 NY2d 253, 262-263]).

Shaw v Club Mgrs. Assn. of Am., Inc., 2011 NY Slip Op 04034 (App. Div., 2nd 2011)

However, the Supreme Court erred in dismissing the fifth cause of action alleging defamation. The Supreme Court correctly determined that the alleged statements tend to injure the plaintiffs in their trade, business, or profession (see Wasserman v Haller, 216 AD2d 289, 289-290). Thus, the statements are slander per se and damages are presumed (see Liberman v Gelstein, 80 NY2d 429, 435). The Supreme Court then held that the alleged statements were protected by a qualified privilege. However, the shield provided by a qualified privilege may be dissolved if a plaintiff can demonstrate that a defendant spoke with spite or ill will (common-law malice) or with a high degree of awareness of the statements' probable falsity (constitutional malice) (see Liberman v Gelstein, 80 NY2d at 437-438; Kotowski v Hadley, 38 AD3d 499, 500). Here, the complaint alleged, inter alia, that certain of the individual defendants spoke with knowledge that such statements were false or spoke with reckless disregard for the statements' truth or falsity. "Since . . . the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)'" (Sokol v Leader, 74 AD3d 1180, 1182, quoting Kotowski v Hadley, 38 AD3d at 500-501; see Arts4All, Ltd. v Hancock, 5 AD3d 106, 109). Thus, dismissal of the fifth cause of action alleging defamation pursuant to CPLR 3211(a)(7) was not warranted.

Correa v Orient-Express Hotels, Inc., 2011 NY Slip Op 04375 (App. Div., 1st 2011)

Neither the affidavit nor the deposition testimony defendant offered constitutes the type of documentary evidence that may be considered on a motion pursuant to CPLR 3211(a)(1) (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]). The remainder of the evidence does not "conclusively establish[] a defense to the asserted claims as a matter of law" because it does not irrefutably establish that defendant neither owned nor controlled the premises (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Wright v C.H. Martin of White Plains Rd., Inc., 23 AD3d 295, 296 [2005]).

O'Callaghan v Brunelle, 2011 NY Slip Op 04095 (App. Div., 1st 2011)

The documentary evidence in support of the motion, including decisions from the NYSE and SEC, refuted plaintiff's allegations that defendants' failure to call the witness, who consented to the NYSE's Hearing Panel's finding that he engaged in conduct constituting improper trading arrangements and violated various rules, constituted legal malpractice and established a defense as a matter of law warranting dismissal of the complaint (see Minkow v Sanders, __ AD3d __ , 2011 NY Slip Op 02120 [2011]; see also CPLR 3211[a][1]). Contrary to plaintiff's contention, it is apparent from the motion court's decision that it properly treated the instant motion as one to dismiss and not one for summary judgment (compare Sokol v Leader, 74 AD3d 1180 [2010]).

3211(a)(8) Long Arm 302(a)(1)

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

Andrews v Modell, 2011 NY Slip Op 03982 (App. Div., 2nd 2011)

Pursuant to CPLR 302(a)(1), "long-arm jurisdiction over a nondomiciliary exists where (i) a defendant transacted business within the state and (ii) the cause of action arose from that transaction of business" (Johnson v Ward, 4 NY3d 516, 519; see CPLR 302[a][1]). Here, the defendant did not conduct "sufficient purposeful activities in New York, which bore a substantial relationship to the subject matter of this action, so as to avail [himself] of the benefits and protections of New York's laws" (Transportation Ins. Co. v Simplicity, Inc., 61 AD3d 963, 964; see e.g. Spanierman Gallery, PSP v Love, 320 F Supp 2d 108, 111; PaineWebber Inc. v Westgate Group, Inc., 748 F Supp 115, 117, 119; Standard Wine & Liq. Co. v Bombay Spirits Co., 20 NY2d 13, 17; CK's Supermarket Ltd. v Peak Entertainment Holdings, Inc., 37 AD3d 348, 348; American Recreation Group v Woznicki, 87 AD2d 600, 601; J. E. T. Adv. Assoc. v Lawn King, 84 AD2d 744, 745; Pacific Concessions v Savard, 75 Misc 2d 219, 221; cf. Ulster Scientific v Guest Elchrom Scientific AG, 181 F Supp 2d 95, 102; Barclays Am./Bus. Credit v Boulware, 151 AD2d 330, 331). Accordingly, the Supreme Court lacked personal jurisdiction over the defendant and, thus, erred in denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction (see Sanchez v Major, 289 AD2d 320, 321; Foley v Roche, 68 AD2d 558, 565).

Magwitch, L.L.C. v Pusser's Inc., 2011 NY Slip Op 03973 (App. Div., 1st 2011)

On May 9, 2002, plaintiff entered into an assignment agreement with Barclays Bank PLC, whereby plaintiff purchased $3,300,000 of the debt owed by Pusser's Ltd. to Barclays in exchange for $1,500,000. Plaintiff was assigned the note and all security held by Barclays in Pusser's Ltd.'s assets. The agreement was governed by BVI law, and was signed by all parties in the BVI except plaintiff, which executed the agreement in New Jersey. The assignment of the security agreements, which provided for the collateral in the United States that secured the note, was executed by defendant Charles S. Tobias in the BVI and was governed by BVI law.

Following Pusser's Ltd.'s default on the note, plaintiff commenced an action in New Jersey federal court to recover on the note against the same defendants sued herein, namely, Pusser's Ltd., two entities affiliated with Pusser's Ltd. (one incorporated in Florida and the other in the BVI), and Tobias, a resident of the BVI who controls the corporate defendants. After the New Jersey action was dismissed for lack of personal jurisdiction, plaintiff commenced this action in Supreme Court, New York County. Defendants timely removed the action to federal court, based on the alleged existence of federal diversity jurisdiction; the removal was effected before the expiration of defendants' time to respond to the complaint by answer or motion. Plaintiff moved to remand the action to New York Supreme Court for lack of diversity, and defendants moved to dismiss for lack of personal jurisdiction. The federal court granted plaintiff's motion and directed that the entire matter, including defendants' pending motion to dismiss, be remanded to state court. Upon remand, Supreme Court granted the motion to dismiss. We affirm.

Contrary to the argument of plaintiff and the dissent, defendants did not waive any defenses based on lack of personal jurisdiction by removing the action to federal court. We agree with the view of the Third Department, expressed in a decision issued after this appeal was argued, that Farmer v National Life Assn. of Hartford, Conn. (138 NY 265 [1893]), relied on by plaintiff and the dissent, is no longer binding because it was "based on the outdated distinction between special and general appearances . . . and also on the removal procedure applicable at that time, long since superseded by the CPLR, the Federal Rules of Civil Procedure and 28 USC § 1446" (Benifits by Design Corp. v Contractor Mgt. Servs., LLC, 75 AD3d 826, 828 [2010]; see also Siegel, NY Prac § 109 [4th ed] [under prior law "(a) special appearance was used by the defendant for the sole purpose of objecting to the court's jurisdiction of his person," but "(t)he CPLR abolished the special' appearance, and since the general' appearance was used only to differentiate it from the special one, both categories have disappeared under the CPLR"]). "Moreover, though not controlling, we note that removal does not waive the defense of lack of personal jurisdiction in federal court" (Benifits by Design, 75 AD3d at 828 [citations omitted]). While this Court rejected a similar argument against Farmer's continuing viability in Quinn v Booth Mem. Hosp. (239 AD2d 266 [1997]), we find the reasoning of the Third Department in the more recent Benifits by Design case persuasive and, given the desirability of uniform construction of the CPLR throughout the state, follow the latter decision.

The motion court properly dismissed the action for lack of personal jurisdiction. Although CPLR 302(a)(1) permits a court to exercise personal jurisdiction over any non-domiciliary who, in person or through an agent, "transacts any business within the state or contracts anywhere to supply goods or services in the state," defendants' actions here did not amount to purposeful activity by which they availed themselves of the privilege of conducting business in New York. The acts of sending payments to a New York bank account and correspondence to a New York address, and engaging in telephone discussions with plaintiff's principal, who also was defendants' legal advisor while he was in New York, were not a sufficient basis to satisfy the statutory requirements (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434 [2006], lv denied 9 NY3d 803 [2007]).

The court also properly found that it could not exercise personal jurisdiction over defendants pursuant to CPLR 302(a)(3). That section provides for jurisdiction over a defendant who (1) commits a tortious act outside New York (2) that causes injury within New York (3) where the defendant either (i) does or solicits business, or engages in any other course of conduct, or derives substantial revenue from activities in New York, or (ii) expects or should expect that its tortious act will have consequences in New York, and derives substantial revenue from interstate or international commerce (see CPLR 302[a][3]; see generally Cooperstein v Pan-Oceanic Mar., 124 AD2d 632, 633 [1986], lv denied 69 NY2d 611 [1987]). The determination of whether a tortious act committed outside New York causes injury inside the state is governed by the "situs-of-injury" test, requiring determination of the location of the original event that caused the injury (see Bank Brussels Lambert v Fiddler Gonzalez & Rodriguez, 171 F3d 779, 791 [2d Cir 1999]; see also Kramer v Hotel Los Monteros S.A., 57 AD2d 756 [1977], lv denied 43 NY2d 649 [1978]).

Here, the original event that caused the injury was not, as plaintiff maintains, the disbursement of funds from New York to purchase the note from Barclays, since there would not have been any injury if payment had been made when due. Rather, the injury was caused by misrepresentations about the transfer of assets and the transfer and diversion of funds, which occurred in the BVI and locations other than New York, and resulted in the unavailability of funds to pay plaintiff the amounts due on the note. The second part of the test also cannot be satisfied, since defendants do not either: regularly do or solicit business, or engage in any other persistent course of conduct, or derive substantial revenue for goods or services used or rendered in New York; or reasonably expect the alleged tortious act to have consequences in the state, and derive substantial revenue from interstate or international commerce (see CPLR 302[a][3]).

All concur except McGuire, J. who dissents

in a memorandum as follows:
McGUIRE, J. (dissenting)

This appeal is controlled by Farmer v National Life Assn. of Hartford Conn. (138 NY 265 [1893]) and our decision in Quinn v Booth Mem. Hosp. (239 AD2d 266 [1997]). In Farmer, the plaintiff commenced an action in state Supreme Court, the defendant removed it to federal court, and the federal court remanded it to Supreme Court. The defendant then moved to dismiss on the grounds that it had not been properly served and that the admission of service was defective. On the defendant's appeal to the Court of Appeals from the denial of its motion, the Court held that the defendant had waived this objection when it removed the action to federal court:

"It is unnecessary to consider what force, if any, the objections to the mode of service of process in this case and to the sufficiency of the admission of service might have had, if they had been seasonably made, for we think it must be held that the defendant necessarily submitted itself to the jurisdiction of the state court and waived any defect there may have been in the procedure to acquire jurisdiction of its person, by the proceeding which it initiated and consummated for the removal of the action into the United States Circuit Court. There could be no transfer of the cause from the state to the federal jurisdiction, unless there was an action pending. The federal statute required it, and the petition must so allege, and must also aver that the petitioner is a party to the action . . . [The rule recognizing the right of a defendant to challenge service after certain special appearances] has no application where the defendant becomes an actor in the suit and institutes a proceeding which has for its basis the existence of an action to which he must be a party. He thereby submits himself to the jurisdiction of the court" (138 NY at 269-70).

As is evident, the Court concluded both that the act of removing the case necessarily entailed a concession by the defendant that jurisdiction of its person had been properly acquired by the state court, and that the concession was conclusive. The Court reiterated this rationale in the course of discussing with approval a federal case in which, following the removal of an action commenced in state court, the court denied the defendant's motion to dismiss on the ground of defective service, reasoning that, "[b]y bringing it here, he voluntarily treats it as properly commenced and actually pending in the state court, and he cannot, after it is entered here, treat it otherwise" (id. at 271 [quoting Sayles v North Western Ins. Co., 2 Curtis C.C. 212 [1856]). The Court stated:

"The principle thus formulated, is, we think, sound, reasonable and just. It cannot be tolerated that a defendant shall question the jurisdiction of a state tribunal over his person, after he has effected a transfer of the cause to another court, by placing upon its records an affirmation under oath of the pendency of the action, and of his relation to it as a party, and obtained the approval of the court of the bond required as a condition of its removal. If the cause is subsequently remanded, he cannot be heard to say that his own proceedings have in effect been coram non judice" (id. at 271-272).

We followed Farmer in Quinn, holding that the defendants' "filing of a removal petition to Federal court effected a general appearance precluding their objections to defective service under CPLR 308(1) or (2) after the case was remanded to State court" (Quinn, 239 AD2d at 266). Moreover, we rejected the "suggest[ion] that Farmer is no longer valid" (id.).

Defendants argue that Farmer and Quinn are not controlling because "both cases involv[e] a challenge to [personal jurisdiction based on] service of process only," not a "challenge to personal jurisdiction under the long-arm statute or the due process clause." They cite no authority in support of this effort to create different classes of challenges to personal jurisdiction. Nor do they explain why an objection to personal jurisdiction based on improper (or even a complete lack of) service of process is of lesser moment than or otherwise stands on a different footing from objections to personal jurisdiction based on either the inapplicability of a long-arm statute or the want of sufficient contacts to satisfy due process ^[FN1]. Aside from these difficulties with defendants' argument, nothing in Farmer suggests that its waiver analysis turned on the specific reason personal jurisdiction allegedly was lacking. The insurmountable difficulty, however, flows from the rationale of Farmer —- removal to federal court entails a concession that personal jurisdiction properly was obtained by the state court —- and our obligation to accept its validity. That rationale applies with the same force to all objections to personal jurisdiction, be they based on the inapplicability of a long-arm statute, the insufficiency of contacts or improper service.

Defendants also argue that: (1) "a combined reading of CPLR 320 . . . and 3211 . . . establishes that removal does not constitute an appearance which . . . waives jurisdictional objections" and (2) "[c]onsistent with [federal precedents], the Federal Rules of Civil Procedure plainly allow objection to personal jurisdiction once a case is removed from state to federal court." The latter argument was raised unsuccessfully in Quinn (Reply Brief at 7, Quinn v Booth Mem. Hosp., 239 AD2d 266 [1997], supra). Moreover, both arguments apply with equal force to the waiver analysis in Farmer. Whatever their force, acceptance of either of these arguments would require us either to refuse to follow Farmer or to limit its holding to its particular facts without identifying a basis for doing so that does not equally undermine that holding.

At least implicitly, the majority rejects defendants' attempt to distinguish Farmer and Quinn. The majority, however, chooses to follow the recent decision of a panel of the Third Department in Benifits by Design Corp. v Contractor Mgt. Servs., LLC (75 AD3d 826 [2010]), because its reasoning is persuasive and a "uniform construction of the CPLR throughout the state" is desirable. The rationale of Farmer certainly is open to question, its inconsistency with federal law is clear, and it arguably unduly burdens the exercise of a federal right. But it has not been overruled by the Court of Appeals, and Quinn and Benifits by Design come to different conclusions on the question of whether Farmer was superseded by the CPLR. Moreover, defendants do not contend that Farmer is no longer good law but seek only to distinguish it, and thus the majority decides this appeal on a ground not raised by defendants (see Misicki v Caradonna, 12 NY3d 511, 519 [2009] ["to decide this appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play"]). For these reasons, I would follow Farmer despite my reservations about its rationale.

Accordingly, I would reverse and deny defendant's motion to dismiss for lack of personal jurisdiction.

66666

Jurisdiction

CPLR § 302

Paolucci v Kamas, 2011 NY Slip Op 03823 (App. Div., 2nd 2011)

Personal jurisdiction can be conferred under CPLR 302(a)(1) "even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095; see Fischbarg v Doucet, 9 NY3d 375, 380). Here, however, the Supreme Court properly determined that the number, nature, and quality of the defendants' contacts with New York do not evince purposeful activities by which the defendants availed themselves of the benefits and protections of New York law (see Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861; see also Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; cf. Fischbarg v Doucet, 9 NY3d 375; Grimaldi v Guinn, 72 AD3d 37).

The Supreme Court also properly determined that personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3) based upon tortious activity occurring outside New York, causing injury within New York. The plaintiff failed to demonstrate prima facie that the defendants "[1] regularly do[ ] or solicit[ ] business, or engage[ ] in any other persistent course of conduct, or derive[ ] substantial revenue from goods used or consumed or services rendered, in the state," or "[2] expect[ ] or should reasonably expect the act to have consequences in the state and derive[ ] substantial revenue from interstate or international commerce" (CPLR 302[a][3][i], [ii]; see Ingraham v Carroll, 90 NY2d 592; cf. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210).

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

3211(a)(1), 3212(a)(f), among other things

NYP Holdings, Inc. v McClier Corp., 2011 NY Slip Op 02738 (App. Div., 1st 2011)

The motion that resulted in the order appealed from was Ruttura's second motion; it had previously made a motion for summary judgment dismissing the third-party complaint based on the volunteer doctrine (see 65 AD3d 186 [2009]).

As a general rule, "[p]arties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment" (Phoenix Four v Albertini, 245 AD2d 166, 167 [1997] [internal quotation marks and citation omitted]). However, there are exceptions to this rule (see e.g. Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39 [2002]).

Ruttura made its previous motion on behalf of all third-party defendants, and not every third-party defendant had the same subcontract with third-party plaintiff McClier Corporation that Ruttura did; for example, third-party defendant Stallone Testing Laboratories, Inc.'s subcontract was oral. Therefore, Ruttura was not barred from making the instant motion with respect to the cause of action for contractual indemnification. However, the arguments that Ruttura now raises with respect to common-law or implied indemnification (McClier's participation in the wrongdoing alleged by plaintiff), contribution (the lack of tort damages), and breach of contract (McClier's failure to allege damages other than indemnification damages) could have been made on behalf of all the third-party defendants; hence, they should have been raised on the prior motion (see Phoenix, 245 AD2d at 167).

In addition, third-party defendants Stallone, Fred Geller Electrical, Inc., and First Women's Fire Systems Corp. had previously moved to dismiss the third-party complaint; the court (Herman Cahn, J.) granted the motion in part and denied it in part (see 2007 NY Slip Op 34111[U]). To the extent these third-party defendants' interests were identical to Ruttura's, they were in privity (see Matter of Midland Ins. Co., 71 AD3d 221, 226 [2010]), and to the extent an issue was actually decided on the Stallone motion, law of the case applies (see id. at 225-226). Thus, law of the case bars McClier's contribution claim against Ruttura and permits the common-law indemnification and breach of contract claims to survive. However, it does not prevent Ruttura from moving against the contractual indemnification claim, as Justice Cahn did not decide this issue.

Because neither the rule against successive summary judgment motions nor law of the case barred Ruttura from moving against the contractual indemnification claim, we consider it on the merits. The indemnification provision in the McClier-Ruttura subcontract states, in pertinent part, "[T]he Subcontractor shall indemnify . . . the . . . Contractor . . . from and against all claims . . . arising out of or resulting from performance of the Subcontractor's Work . . ., provided that any such claim . . . is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself)" (emphasis added).

One paragraph of the complaint alleges, in conclusory fashion, that "the Post has been damaged and continues to suffer damages to itself and to other property" (emphasis added). However, conclusory allegations are insufficient (see Celnick v Freitag, 242 AD2d 436, 437 [1997]; Pitcock v Kasowitz, Benson, Torres & Friedman LLP, 74 AD3d 613, 615 [2010]). Read as a whole, the complaint's factual allegations show that the only property damage suffered by plaintiff was damage to its printing plant — for example, cracked concrete slabs and the fact that repair work will result in physical damage to the plant. Therefore, by submitting the complaint with its moving papers, Ruttura made a prima facie showing of entitlement to judgment as a matter of law on the contractual indemnification claim.

In opposition to this part of Ruttura's motion, McClier merely relied on the complaint. However, "[t]he burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified" (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 343 [1974] [internal quotation marks and citation omitted]). "Bald conclusory assertions are insufficient to defeat summary judgment" (Spaulding v Benenati, 57 NY2d 418, 425 [1982]).

Note all the issues here: Successive SJ, Law of the Case, Privity, etc.

Gonzalez v ARC Interior Constr., 2011 NY Slip Op 02728 (App. Div., 1st, 2011)

However, we reject plaintiff's argument that as part of the award of summary judgment, the court should have, essentially, dismissed the affirmative defense of culpable conduct as a matter of law. The police report and plaintiff's bare-bones affidavit stating that she looked for oncoming traffic before crossing the street were insufficient to eliminate any issue of fact whether plaintiff exercised reasonable care in crossing the intersection (see Thoma v Ronai, 189 AD2d 635 [1993], affd 82 NY2d 736 [1993]; Lopez v Garcia, 67 AD3d 558 [2009]; Hernandez v New York City Tr. Auth., 52 AD3d 367, 368 [2008]). It is noted again that the motion was made before defendants had an opportunity to depose plaintiff concerning the circumstances surrounding the accident and test her credibility (see Lopez, 67 AD3d at 558-559; CPLR 3212[f]; see also Donato v ELRAC, Inc., 18 AD3d 696, 698 [2005]). Thus, dismissal of the defense would have been premature.

Rivera v Board of Educ. of the City of New York, 2011 NY Slip Op 02142 (App. Div., 1st 2011)

While defendant's prior motion sought to dismiss either on the pleadings or on summary judgment and was denied as premature in light of the need for further discovery (with leave to renew within 120 days after a certain deposition was taken), the instant motion seeks to dismiss solely for failure to state a cause of action. Defendant therefore was not bound to bring the motion within the time imposed by the court for renewal of the summary judgment motion (see CPLR 3211[e]; Herman v Greenberg, 221 AD2d 251 [1995]). Nor does the motion violate the single motion rule (see CPLR 3211[e]), since the prior motion was not decided on the merits (see generally Ultramar Energy v Chase Manhattan Bank, 191 AD2d 86 [1993]; compare Miller v Schreyer, 257 AD2d 358, 361 [1999] ["the issue to be decided is whether defendants are entitled to a second determination of the identical question"]).

Comito v Foot of Main, LLC, 2011 NY Slip Op 02344 (App. Div., 2nd 2011)

The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1), contending that documentary evidence established the plaintiff's failure to comply with certain notice and payment provisions of the parties' stipulation of settlement. The items submitted to the Supreme Court by the defendants in support of their motion do not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997; Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1149-1150; Fontanetta v John Doe 1, 73 AD3d 78, 85-87). Even if these items constituted documentary evidence, they did not utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; All Is. Media, Inc. v Creative AD Worx, Inc., 79 AD3d 677; Granada Condominium III Assn. v Palomino, 78 AD3d at 996-997). Accordingly, the Supreme Court properly denied the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1).

Deleg v Vinci, 2011 NY Slip Op 02619 (App. Div., 2nd 2011)

Furthermore, contrary to the defendants' contention, the plaintiffs' motion was not premature, as the defendants failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiffs and the nonparty driver (see Kimyagarov v Nixon Taxi Corp., 45 AD3d 736). "[T]he defendants' purported need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts" (Abramov v Miral Corp., 24 AD3d 397, 398). "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, 760; see Corwin v Heart Share Human Servs. of N.Y., 66 AD3d 814; Monteleone v Jung Pyo Hong, 79 AD3d 988).

Freiman v JM Motor Holdings NR 125-139, LLC, 2011 NY Slip Op 02622 (App. Div. 2nd 2011)

Prior to the completion of discovery, the defendants moved for summary judgment dismissing the complaint. The defendants argued that the plaintiff's express written acknowledgments established that he was employed "at-will" and that the fraud allegations were patently insufficient, as they derived from his cause of action alleging breach of contract and were based on stated opinions or projections, rather than assertions of fact. The Supreme Court denied the motion for summary judgment, finding that the issues were "impossible to resolve" in the midst of discovery. We reverse.

****

There was no need to delay the determination of the motion by virtue of CPLR 3212(f). The plaintiff failed to demonstrate that additional discovery might lead to relevant evidence which would have defeated any branch of the defendants' motion (see Dempaire v City of New York, 61 AD3d 816; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621; Lopez v WS Distrib., Inc., 34 AD3d 759, 760).

Greenpoint Props., Inc. v Carter, 2011 NY Slip Op 02625 (App. Div., 2nd 2011)

The Supreme Court erred by, in effect, granting that branch of the defendant's motion which was for leave to serve and file a late motion for summary judgment, since the defendant failed to demonstrate good cause for not timely serving the motion as required by CPLR 3212(a) (see Brill v City of New York, 2 NY3d 648). "Significant outstanding discovery may, in certain circumstances, constitute good cause for the delay in making a motion for summary judgment" (Tower Ins. Co. of N.Y. v. Razy Assoc., 37 AD3d 702, 703; see Grochowski v Ben Rubins, LLC, 81 AD3d 589; Kung v Zheng, 73 AD3d 862, 863; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1012-1013; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 745; Sclafani v Washington Mut., 36 AD3d 682, 682). Here, however, contrary to the defendant's contention, the discovery outstanding at the time the note of issue was filed was not essential to his motion (see Tower Ins. Co. of N.Y. v. Razy Assoc., 37 AD3d at 703). In the absence of a showing of good cause for the delay in filing a motion for summary judgment, "the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment" (John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899, 901; see Brill v City of New York, 2 NY3d at 652). Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was for leave to serve and file a late motion for summary judgment, and otherwise denied the motion as academic.

It's an interesting case on timing.

Great case on 3211(a)(1)

Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 2011 NY Slip Op 02628 (App. Div., 2nd 2011)

Further, the Supreme Court properly denied that branch of Scottsdale's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint based on a defense founded upon documentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996; Fontanetta v John Doe 1, 73 AD3d 78, 83; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d at 996, quoting Fontanetta v John Doe 1, 73 AD3d at 84-86). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence' within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997). The letters from the attorney and claims service relied upon by Scottsdale do not constitute "documentary evidence" for the purposes of CPLR 3211(a)(1).

Westport Ins. Co. v Altertec Energy Conservation, LLC, 2011 NY Slip Op 02652 (App. Div., 2nd 2011)

In response to Energy Spectrum's establishment of its entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact or establish that additional discovery was necessary to oppose the motion. While the plaintiff claimed that discovery was necessary, it failed to submit any affidavits establishing that facts existed which were essential to justify opposition to the motion but were not in its possession in light of the fact that discovery had yet to be completed (see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). "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" (Arpi v New York City Tr. Auth., 42 AD3d 478, 479; see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 687). Consequently, the Supreme Court should have granted Energy Spectrum's motion for summary judgment dismissing the complaint insofar as asserted against it.