Category: CPLR R. 3212

In this case, the plaintiffs established their prima facie entitlement
to judgment as a matter of law on the issue of liability by tendering
an affidavit from the plaintiff driver Dana Trombetta, in which she
stated that she completely stopped at a stop sign while waiting for a
crossing guard who was directing pedestrians to cross the street, when
she was struck in the rear by the defendant's vehicle. The defendant's
opposition consisted solely of an affirmation of counsel and,
therefore, was insufficient to rebut the plaintiffs' prima facie
showing. Defense counsel's claim that further discovery was required (see
CPLR 3212[f]) is unavailing since the defendant failed to put forth
some evidentiary basis to suggest that discovery might lead to relevant
evidence (see Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615).

While the Supreme Court has the power to award summary judgment to a
nonmoving party, predicated upon a motion for that relief by another
party (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430), it
may not search the record and award summary judgment on a cause of
action if no party has moved for it (see State Farm Fire & Cas. Co. v Browne, 12 AD3d 361, 362; City Wide Payroll Serv. v Israel Discount Bank of N.Y., 239
AD2d 537, 538). Here, the record indicates that NAB did not move for
summary judgment on its cross claim against Tower for indemnification.
Therefore, the court should not have awarded relief on that cause of
action (see State Farm Fire & Cas. Co. v Brawne, 12 AD3d at 362; City Wide Payroll Serv. v Israel Discount Bank of N.Y., 239 AD2d at 538).

On December 29, 2006, defendant removed its broadcasting equipment
and vacated the premises. Thereafter, plaintiff made a written demand
for defendant to remit $299,700, a sum which plaintiff claimed
represented rent payments for the balance of the five-year 2006 lease
term. Upon defendant's refusal, plaintiff commenced this action on the
theories of breach of contract, breach of implied duty of good faith
and fair dealing, unjust enrichment, quantum meruit and fraud.
Plaintiff also sought a declaration that the 2006 lease was in full
force and effect. In lieu of an answer, defendant moved for dismissal
of the complaint and summary judgment pursuant to CPLR 3211 and/or
3212. In an order without a supporting decision, Supreme Court granted
defendant's motion and dismissed the complaint, prompting this appeal.

Initially, we note that Supreme Court's order fails to specify
the ground upon which it granted defendant's motion. In the event that
the court treated defendant's motion as one for summary judgment, we
find this to be error. A motion for summary judgment may not be made
prior to joinder of issue (see CPLR 3212 [a]) and, although a
motion to dismiss pursuant to CPLR 3211 may be converted to a summary
judgment motion by the court after giving the parties adequate notice (see CPLR 3211 [c]; Lockheed Martin Corp. v Aatlas Commerce, Inc.,
283 AD2d 801, 802 [2001]), the record discloses no such notice by the
court. While "the notice requirement may be obviated in cases where it
can be found that the parties 'deliberately chart[ed] a summary
judgment course'" (Henbest & Morrisey v W. H. Ins. Agency, 259 AD2d 829, 829-830 [1999], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]), the record before us does not support such a finding. Although
plaintiff made some effort to controvert the evidenc epresented in
support of defendant's motion, we cannot conclude that it clearly
intended to chart a summary judgment course (see Wadsworth v Beaudet, 267 AD2d 727, 730 [1999]). As
a result, we proceed to determine defendant's motion to dismiss and, in
doing so, we "must afford the pleadings a liberal construction, take
the allegations of the complaint as true and provide plaintiff the
benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Team Mktg. USA Corp. v Power Pact, LLC, 41 AD3d 939, 940 [2007]).

Defendant failed to raise a material issue of fact. Initially, we
reject defendant's assertion that Supreme Court erred in granting
plaintiffs summary judgment without permitting him to obtain further
discovery. Specifically, defendant sought to obtain the testimony of
Mayes to establish that Mayes had acquired the right-of-way by means of
abandonment or adverse possession, that she owned and used the
right-of-way exclusively and that she had conveyed exclusive title and
possession thereof to defendant ^[FN4]. "[I]f 'facts essential to justify opposition [to a motion for summary judgment] may exist but cannot then be stated'" (Mazzaferro v Barterama Corp., 218 AD2d 643, 643 [1995], quoting CPLR 3212 [f]), a trial court may deny a motion for summary judgment (see
CPLR 3212 [f]). However, "[t]he '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 at 643, quoting Jones v Gameray, 153 AD2d 550, 551 [1989].
[*3]

Here, Mayes' anticipated
testimony would not have controverted plaintiffs' establishment of the
common right-of-way. The deeds from Mayes' predecessors to Mayes
clearly provide that the right-of-way is to be held "in common with
others" and Mayes sold the lots to the parties subject to the
subdivision map. "[A]n easement created by reference to a filed map can
be extinguished only by the united action of all lot owners for whose
benefit the easement was created" (O'Hara v Wallace, 83 Misc 2d 383, 387 [1975], mod
52 AD2d 622 [1976]). Thus, under the circumstances here, Mayes could
not have acquired the easement by abandonment or adverse possession and
could not, alone, have conveyed the easement to defendant (see generally Will v Gates, 89 NY2d 778, 784-785, [1997]; O'Hara v Wallace,
83 Misc 2d at 386-387). Hence, neither evidence of her intent to do so,
nor defendant's understanding thereof, would be sufficient to overcome
plaintiffs' demonstrated entitlement to judgment as a matter of law,
and Supreme Court properly denied defendant's request for further
discovery before granting plaintiffs' motion for summary judgment.

Not too long ago I referred to Matt Lerner's post regarding a case set to be argued before the Court of Appeals where the issue involved CPLR R. 3212(a), otherwise known as the 120 day rule.  Here, I'll refresh your recollection (I know, I know):

In Crawford, the
parties entered into a scheduling order in New York County.  The
outside deadline to file summary judgment motions was pursuant to the
local rules.  The local rules provide that movants have an outside
deadline of 60 days after the filing of the note of issue, rather than
the 120-day deadline.

The defendant unfortunately
overlooked the local rules and, upon realizing the oversight, served
and filed its summary judgment motion a few days after the 60-day
deadline.  The trial court considered the motion, even though the
motion was beyond the 60-day deadline, and dismissed the complaint.
The Appellate Division, First Department reversed the Decision and Order, holding that an oversight regarding the court rules did not constitute "good cause" under Brill and CPLR 3212.  Justice Tom and Williams dissented.

On September 24, 2004, plaintiff Craig Crawford brought a Human
Rights Law action in Supreme Court, New York County, against his
employer, Liz Claiborne, Inc., and other [*2]parties
alleging discrimination based on sexual orientation. On April 11, 2005,
the IAS Judge issued a preliminary conference order ("PCO") directing
that dispositive motions be made "per local rule."

At the time of the issuance of the PCO, Rule 17 of the Rules of
the Justices of the Supreme Court, Civil Branch, New York County
("Local Rules") provided that
"[u]nless specified otherwise in a particular case, pursuant to
CPLR 3212(a) all motions for summary judgment must be made no later
than 60 days after the filing of the note of issue."
The IAS Judge had individual part rules in addition to the Local
Rules, but at the time the PCO was issued had no individual part rule
regarding summary judgment motions.

On April 17, 2006, before the note of issue was filed, the Local Rules were amended, including an amended Rule 17 providing that
"[u]nless otherwise provided in a particular case in the
preliminary conference order or other directive of the Justice
assigned, a motion for summary judgment shall be made no later than 120
days after the filing of the note of issue, except with leave of court
for good cause shown."
Around the same time, the IAS Judge modified her individual part
rules adding the language "[a]bsent court order, post note of issue
dispositive motions shall be made within 60 days thereof." Thus, when
the instant note of issue was filed on May 15, 2006, the Local Rules
differed from the IAS Judge's individual part rules regarding the
deadline for filing a summary judgment motion. Under the IAS Judge's
individual part rules, a motion for summary judgment would be due on
July 17, 2006, whereas the parties would have 60 additional days under
the amended Local Rules.

Defendants' motion for summary judgment was made on July 19,
2006. On July 20, 2006, plaintiff moved by order to show cause to
strike defendants' motion as untimely. The IAS Judge denied the
application and instructed plaintiff to raise the issue of timeliness
in his response to the summary judgment motion. Thereafter, plaintiff
opposed the motion solely on the ground of untimeliness without
addressing the merits. At oral argument on September 18, 2006, the IAS
Judge determined that the motion was untimely but found that defendants
showed "good cause" for the delay in filing the motion. In that the
motion was otherwise unopposed on the merits, the IAS Judge granted
summary judgment for defendants.

Relying on Brill v City of New York (2 NY3d 648
[2004]), the Appellate Division, in a 3-2 decision, reversed,
reinstated the complaint, and remanded the case to the Supreme Court
(45 AD3d 284, 287 [1st Dept 2007]). Defendants appeal to this Court by
leave of the Appellate Division on a certified question.

We hold that defendants' motion for summary judgment, made 62 days after the [*3]filing of the note of issue, was timely and that Brill
is inapplicable to this case. At the time the PCO was entered, the IAS
Judge had no individual part rule; thus, "per local rule" could only
have referred to the Local Rules of Supreme Court, New York County. In
that the 120-day amended Local Rule was in effect at the time the note
of issue was filed, defendants' motion was actually timely.

That part of the motion that sought dismissal of the Labor Law § 200
claim was premature, since, as a result of the failure of all
defendants to engage in discovery, the identity of the defendant that
supervised and controlled the freight elevator into which plaintiff was
loading door bucks was within defendants' exclusive knowledge (see CPLR 3212[f]).¹

In Crawford, the
parties entered into a scheduling order in New York County.  The
outside deadline to file summary judgment motions was pursuant to the
local rules.  The local rules provide that movants have an outside
deadline of 60 days after the filing of the note of issue, rather than
the 120-day deadline.

The defendant unfortunately
overlooked the local rules and, upon realizing the oversight, served
and filed its summary judgment motion a few days after the 60-day
deadline.  The trial court considered the motion, even though the
motion was beyond the 60-day deadline, and dismissed the complaint.
The Appellate Division, First Department reversed the Decision and Order, holding that an oversight regarding the court rules did not constitute "good cause" under Brill and CPLR 3212.  Justice Tom and Williams dissented.

The
Court of Appeals will address whether this type of oversight
constitutes "good cause."  New York Civil Law will keep you apprised of
the Court’s holding, which should be handed down in October.

Here is a brief excerpt of the Crawford decision::

There was a strong dissent.

CPLR R. 3212(a) is one of those little things that can turn into one of those big things if it’s overlooked or its importance underestimated.

Keep an eye on New York Civil Law for future developments.  Don’t forget to check here as well.

All the bold is mine.