CPLR R. 3212 – Page 3

3212(a)

Quinones v Joan & Sanford I. Weill Med. Coll., 2014 NY Slip Op 00882 [1st Dept. 2014]

While acknowledging that an extension would be warranted by an attorney's illness, a death in the family, or a computer breakdown caused by Hurricane Sandy, the court saw no justification for granting an extension in this case. The court's view was that the excuse offered was a perfunctory claim of law office failure, and did not rise to the level of good cause.

In seeking to reverse the appealed order, defendant claims that CPLR 3212(a) requires a showing of good cause for a late summary judgment motion only when the motion is made more than 120 days after the filing of the note of issue. When a party fails to comply with a court-imposed deadline of less than 120 days, defendant argues, the operative statutory provision is CPLR 2004, under which "law office failure" may be considered a factor supporting a finding of good cause. Defendant further contends that, even under CPLR 3212(a), it has demonstrated good cause for its failure to move within the court-imposed time limit.

It is uncontroverted that defendant's motion was not timely under the schedule set by the preliminary conference order dated January 5, 2011. As the Court of Appeals has repeatedly reiterated, court-ordered time frames are requirements to be taken seriously by the parties (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]). Contrary to the distinction defendant seeks to draw, it does not matter whether a motion for summary judgment has been made more than 120 days after the filing of the note of issue or after the expiration of a shorter time limit set by a court order or stipulation. Whatever the source of the deadline with which a party fails to comply, the lateness may not be excused without a showing of good cause within the meaning of CPLR 3212(a) — a showing of something more than mere law office failure (see Polanco v Creston Ave. Props., Inc., 84 AD3d 1337, 1341 [2d Dept 2011]; Powell v Kasper, 84 AD3d 915, 917 [2d Dept 2011]; Deberry-Hall v County of Nassau, 88 AD3d 634, 635 [2d Dept 2011]; Fine v One Bryant Park, LLC, 84 AD3d 436 [1st Dept 2011]; Riccardi v CVS Pharmacy, Inc., 60 AD3d 838 [2d Dept 2009]; Giudice v Green 292 Madison, LLC, 50 AD3d 506 [1st Dept 2008]; Glasser Abramovitz, 37 AD3d 194 [1st Dept 2007]). Since the excuse proffered by defendant — that its counsel inadvertently overlooked the date set in the January 5, 2011 preliminary conference order — is a perfunctory claim of law office failure, the motion court providently exercised its discretion in denying defendant's motion.

Emphasis mine.

CPLR 3212(f)

Castagna v Almaghrabi, 2014 NY Slip Op 00474 [2nd Dept. 2014]

"CPLR 3212(f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion exist but cannot then be stated'" (Wesolowski v St. Francis Hosp., 108 AD3d 525, 526, quoting CPLR 3212[f]), especially where, as here, the plaintiff has not had a reasonable opportunity to conduct discovery, and has no personal knowledge of the relevant facts (see Wesolowski v St. Francis Hosp., 108 AD3d at 526; Jones v American Commerce Ins. Co., 92 AD3d 844, 845). Under the circumstances of this case, the motion for summary judgment should have been denied, with leave to renew after the completion of discovery.

Bold is mine.

CPLR 1015; 3212(a)

CPLR 1015(a)
CPLE 3212(a)

Torres v Zara Realty Holding Corp., 2014 NY Slip Op 00442 [1st Dept. 2014]

In this action for personal injuries allegedly sustained by plaintiff's decedent while he was working at defendant's premises as an assistant elevator mechanic, the note of issue was filed on March 3, 2009, and the decedent died of unrelated causes on June 13, 2009, resulting in an automatic stay of all proceedings until a proper substitution was made (see CPLR 1015[a]; Noriega v Presbyterian Hosp. in City of N.Y., 305 AD2d 220, 221 [1st Dept 2003]). Defendant moved for summary judgment on June 24, 2009, within 120 days after the note of issue was filed, but while the action was stayed. Thus, the order granting the motion on default was properly vacated as a nullity (see Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819, 820 [1st 1985]).

Decedent's daughter was substituted as party plaintiff on May 10, 2010, and defendant concededly had notice of the substitution as of August 17, 2010. Defendant did not attempt to renew its motion for summary judgment until October 28, 2010, more than 120 days after the filing of the note of issue, excluding the tolling period. Moreover, after the motion was automatically denied without prejudice due to defendant's failure to comply with the court rules of the trial part, defendant waited until May 3, 2011 to make the motion in accordance with the applicable rules. By that time, the motion was untimely under any view of the facts (see CPLR 3212[a]).

Defendant's proffered excuses for the delay in moving following substitution are insufficient to excuse its failure to remain apprised of the status of the case and comply with the applicable deadlines (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]).

Bold is mine.

3212(a) outstanding discovery was not sufficient to warrant extention to make late SJ

CPLR 3212(a)

Courtview Owners Corp. v Courtview Holding B.V., 2014 NY Slip Op 00322 [2nd Dept. 2014]

Further, the Supreme Court properly denied, as untimely, those branches of the plaintiff's motion which were for summary judgment, and the defendants' cross motion for summary judgment, as the parties failed to demonstrate good cause for making their respective motion and cross motion more than 60 days after the filing of the note of issue, as required by a preliminary conference order (see Rivera v New York Presbyt. Hosp., 57 AD3d 755; Jackson v Jamaica First Parking, LLC, 49 AD3d 501, 501; Coty v County of Clinton, 42 AD3d 612, 614). While significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129; Kung v Zheng, 73 AD3d 862, 863), contrary to the defendants' contention, the discovery outstanding at the time the note of issue was filed was not essential to their cross motion (see Avezbakiyev v City of New York, 104 AD3d 888, 888-889; Greenpoint Props., Inc. v Carter, 82 AD3d 1157, 1158).

Emphasis is mine.

Premature dismissal (3211/3212 was a premature 4401)

CPLR 3212
CPLR 3211
CPLR 4401

Deonarine v Montefiore Med. Ctr., 2014 NY Slip Op 00299 [1st Dept. 2014]

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered July 19, 2012, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 and 3212, and denied defendant's motion to preclude plaintiff's use of his deposition at trial, unanimously affirmed as to the denial of defendant's motion to dismiss, and the appeal therefrom otherwise dismissed, without costs.

The court properly denied the motion to dismiss the complaint inasmuch as it was based solely on defendant's assertion that plaintiff would be unable to make out a prima facie case at trial by reason of his anticipated "unavailability to testify as a result of his imminent deportation . . ." Accordingly the motion was actually a prematurely made motion for judgment pursuant to CPLR 4401, which has to await the close of plaintiff's case at trial even if plaintiff's ultimate success in the action is improbable (see Cass v Broome County Coop. Ins. Co., 94 AD2d 822, 823 [3rd Dept 1983]). The court's denial of defendant's motion to preclude was effectively an evidentiary ruling made in advance of trial and, as such, is not appealable (see Balcom v Reither, 77 AD3d 863, 864 [2nd Dept 2010]). We have considered defendant's remaining contentions and find them to be without merit.

Emphasis is mine.

3212(a) Filed when received, not necessarily stamped

3212(a)

Tafsiou v Arms Acres, 2012 NY Slip Op 03629 (2nd Dept., 2012)

The defendant contends that the Supreme Court erred in denying its motion for summary judgment dismissing the complaint solely upon the ground that the motion was untimely. We agree. In an order dated November 9, 2010, the Supreme Court extended the defendant's "time to file" a summary judgment motion by 60 days. This 60-day extension expired on January 8, 2011, which was a Saturday. Accordingly, pursuant to Judiciary Law § 282, the defendant had until Monday, January 10, 2011, to file its motion for summary judgment dismissing the complaint. On that date, the defendant's motion papers were received and marked "approved" by the Kings County Supreme Court Motion Support Office, the office with which they were required to be filed (see Kings County Supreme Court Uniform Civil Term Rules, Part A). "Papers that are required to be filed are considered to have been filed when they are received by the office with which, or by the official with whom, they are to be filed" (Castro v Homsun Corp., 34 AD3d 616, 617; Coty v County of Clinton, 42 AD3d 612, 613-614 [internal quotation marks omitted]). Thus, the defendant's motion papers were timely filed when received by the Motion Support Office on January 10, 2011, despite the fact that they were not stamped "filed" by the Kings County Clerk until the following day, January 11, 2011. Accordingly, the matter must be remitted to the Supreme Court, Kings County, to determine the defendant's motion on the merits.

Improper 3211 conversion and some jurisdictional stuff

3211

Bokara Rug Co., Inc. v Kapoor, 2012 NY Slip Op 02269 (1st Dept., 2012)

The motion court improperly treated the motion to dismiss pursuant to CPLR 3211 as a motion for summary judgment dismissing the complaint without providing adequate notice to plaintiffs (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). Plaintiffs did not deliberately chart a summary judgment course, even though they submitted some evidence in opposition to defendants' motion (see Wiesen v New York Univ., 304 AD2d 459, 460 [2003]). Thus, the motion will be reviewed under the standard applicable on a motion to dismiss (see Velez v Captain Luna's Mar., 74 AD3d 1191, 1191 [2010]).

The IAS court erred by dismissing the first, fifth, and sixth causes of actions (alleging fraud, negligent misrepresentation, and breach of contract, respectively) as time-barred. We agree with the motion court that to the extent that these claims are based on transactions or representations that occurred outside the applicable limitations periods, they are barred. However, in support of their motion to dismiss, defendants submitted an ambiguous affidavit and a sampling of invoices, and referred to documents submitted in another case. Defendants did not meet their initial burden of demonstrating that no sales of the type complained of by plaintiff were made by Kapoor Exports or related entities during the four-year limitations period applicable to the breach of contract claim (UCC 2-725; see Benn v Benn, 82 AD3d 548, 548 [2011]; Uniflex, Inc. v Olivetti Corp. of Am., 86 AD2d 538, 539 [1982]), or that none of the alleged misrepresentations in connection with such sales occurred within the six-year limitations period applicable to the fraud and negligent misrepresentation claims (CPLR 203[g], 213[1], [8]).

The IAS court properly denied so much of defendants' motion as sought dismissal on the [*2]ground of lack of personal jurisdiction over Vikram Kapoor. It is undisputed that there were other means of acquiring jurisdiction over his person other than personal service in New York. Thus, Kapoor cannot establish an essential element of the immunity defense to personal jurisdiction (see Olbi USA v Agapov, 294 AD2d 139 [2002]; Brause 59 Co. v Bridgemarket Assoc., 216 AD2d 200, 201 [1995]).

Defendants failed to meet their burden to establish that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). There is nothing in the record to suggest that the court did not properly consider the relevant factors (see Pahlavi at 479).

3212 and (f)

3212

Fook Cheung Lung Realty Corp. v Yang Tze Riv. Realty Corp., 2012 NY Slip Op 02793 (1st Dept., 2012)

J & A provided its insurer with notice of plaintiff's property damage claim within a reasonable time (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). J & A made a prima facie showing on its motion through the affidavit of its vice president stating the date that J & A arrived at the construction site and the extent of its duties and denying knowledge of the property damage until J & A's receipt of an attorney's letter in May of 2007, coupled with the deposition testimony of plaintiff's president regarding the date he first noticed the damage, which was before J & A's arrival. QBE's claim in opposition that J & A had knowledge of the damage before May of 2007 failed to raise an issue of fact, as evidence of conversations between plaintiff's president and a representative of the general contractor working at the adjoining premises and of complaints to the Department of Buildings would not necessarily have put J & A on notice, and it is mere conjecture that J & A was in fact told by others [*2]of the damage. QBE's claimed need for discovery to oppose the motion reflected an ineffectual mere hope (see MAP Mar. Ltd. v China Constr. Bank Corp., 70 AD3d 404 [2010]). In view of the foregoing, we also find that the determination as to the duty to indemnify was not premature.

Taylor v One Bryant Park, LLC, 2012 NY Slip Op 02427 (1st Dept., 2012)

Although summary judgment is not warranted where "credible evidence reveals differing versions of the accident" (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [2012]), the evidence upon which defendants rely is neither credible, nor admissible. The workers' compensation C-2 report is not signed or authenticated, and it is not conclusively clear who created the report or where that person acquired the information (see Zuluaga v P.P.C. Const., LLC, 45 AD3d 479 [2007]). Assuming that the site medic listed on the report completed it, an affidavit from that same medic gives a different version of the accident from that listed on the C-2. The affidavit does not address the inconsistency, and is also not notarized. "While hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where [as here] it is the only evidence submitted in opposition" (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]).

Eve of trial SJ

3212(a)

Ovenseri v St. Barnabas Hosp., 2012 NY Slip Op 02601 (1st Dept., 2012)

Appeals from order, Supreme Court, Bronx County (Robert E. Torres, J.), entered March 15, 2011, which, among other things, stayed all proceedings in this action for 90 days pending a determination by the Workers' Compensation Board regarding plaintiff's status at the time of the alleged accident, and order, same court and Justice, entered July 19, 2011, which denied as moot defendant's motion to modify the order entered March 15, 2011 by, among other things, deleting the 90-day limit on the stay, unanimously dismissed, without costs, as moot. Order, same court and Justice, entered December 2, 2011, which, to the extent appealed from as limited by the briefs, denied defendant's motion to stay all proceedings in this action pending its appeal of the Board's determination, and thereupon denied its motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff, a participant in an out-patient program conducted on premises under the control of defendant hospital, alleges that she was injured when she slipped on a wet floor while she was voluntarily assisting during the program's coffee break.

Defendant is not entitled to a stay of the proceedings in this action pending a determination of its appeal by the Board. Indeed, the matter should not have been referred to the Board, as defendant failed to raise the workers' compensation defense until its eve-of-trial application for a stay, after the time for making summary judgment motions had expired (see Shine v Duncan Petroleum Transport, Inc., 60 NY2d 22, 27-28 [1983]; Sangare v Edwards, 91 AD3d 513 [2012]). Nor should plaintiff's case be dismissed for her purported failure to timely file a workers' compensation claim. Defendant never raised this argument before the motion court, and it expressly waived the argument in its appeal of the Board's determination denying as time-barred any claim for workers' compensation benefits.

Defendant's appeals from the orders entered March 15, 2011 and July 19, 2011 have been rendered moot by the Board's determination.

3211

County of Suffolk v MHC Greenwood Vil., LLC, 2012 NY Slip Op 00174 (2nd Dept., 2012)

"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Sokol v Leader, 74 AD3d 1180, 1180-1181; see Guggenheimer v Ginzburg, 43 NY2d 268, 275). "In considering such a motion, 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" (Sokol v Leader, 74 AD3d at 1181 [internal quotation marks omitted]; see Nonnon v City of New York, 9 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88). " Whether a plaintiff can ultimately establish its allegations is not part of the calculus'" (Sokol v Leader, 74 AD3d at 1181, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19). "A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)" (Sokol v Leader, 74 AD3d at 1181; see CPLR 3211[c]). "If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'" (Sokol v Leader, 74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275). "Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" (Sokol v Leader, 74 AD3d at 1182 [internal quotation marks omitted]; see Lawrence v Graubard Miller, 11 NY3d 588, 595; Rovello v Orofino Realty Co., 40 NY2d 633, 636). "Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it'" (Sokol v Leader, 74 AD3d at 1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275).

Here, the evidence submitted by the defendants did not demonstrate that any fact alleged in the complaint was undisputedly "not a fact at all" (see Guggenheimer v Ginzburg, 43 NY2d at 275; Sokol v Leader, 74 AD3d at 1182). Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

Makris v Darus-Salaam Masjid, N.Y., Inc., 2012 NY Slip Op 00340 (2nd Dept., 2012)

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87). 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 (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Fishberger v Voss, 51 AD3d 627, 628). "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is [*2]barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" (Mendelovitz v Cohen, 37 AD3d 670, 670; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326).

Contrary to Tower's contention, the Supreme Court properly denied its motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). Tower failed to carry its burden of demonstrating that the faulty workmanship exclusion applies in this particular case, and that the exclusion is subject to no other reasonable interpretation than the one offered by it (see Cragg v Allstate Indem. Corp., 17 NY3d 118, 122; Insurance Co. of Greater N.Y. v Clermont Armory, LLC, 84 AD3d 1168, 1170; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100, 104-106). Consequently, Tower failed to utterly refute the plaintiffs' allegation that Tower wrongfully denied their claim or to establish that their allegation was "not a fact at all" (Guggenheimer v Ginzburg, 43 NY2d at 275; see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997).

Conniff v 32 Gramercy Park Owners Corp., 2012 NY Slip Op 00253 (1st Dept., 2012)

The dismissal should have been without prejudice because the court dismissed the complaint upon plaintiff's default in failing to oppose the motion to dismiss (see Hernandez v St. Barnabas Hosp., __ AD3d __, 2011 NY Slip Op 7722 [2011]; Aguilar v Jacoby, 34 AD3d 706, 708 [2006]). The Court did not address the merits of the motion.

Kaplan v Roberts, 2012 NY Slip Op 00492 (2nd Dept., 2012)

At the outset, although the Supreme Court did not give "adequate notice to the parties" that it would treat the defendant's motion as one for summary judgment (CPLR 3211[c]), where, as here, a specific request for summary judgment was made and the parties " deliberately chart[ed] a summary judgment course'" (Mihlovan v Grozavu, 72 NY2d 506, 508, quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320), the court was authorized to treat Equinox's motion as one for summary judgment (see Burnside 711, LLC v Nassau Regional Off-Track Betting Corp., 67 AD3d 718, 720).

Furthermore, the Supreme Court should have granted that branch of Equinox's motion which was pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing the fourth cause of action in the third-party complaint, which sought to recover damages for breach of contract. When the parties' intent to be bound by a contractual obligation "is determinable by written agreements, the question is one of law," which can be resolved by the court on a motion for summary judgment (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291; see ADCO Elec. Corp. v HRH Constr., LLC, 63 AD3d 653, 654; German Masonic Home Corp. v DeBuono, 295 AD2d 312, 313). "A question of fact arises as to the parties' intent to enter into an enforceable obligation [o]nly where the intent must be determined by disputed evidence or inferences outside the written words of the instrument"' (ADCO Elec. Corp. v HRH Constr., LLC, 63 AD3d at 654, quoting Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 291).

Here, even assuming that the "member policies" constituted binding contracts between Equinox and each of its individual members, Equinox established, prima facie, that the provision therein concerning use of the facility by children was clear and unambiguous, and did not create any obligation on the part of Equinox to ensure that Roberts would be protected against any and all dangers potentially posed by another member's failure to properly supervise his or her children (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 292; German Masonic Home Corp. v DeBuono, 295 AD2d at 313; Berghold v Kirschenbaum, 287 AD2d 673, 673). In opposition, Roberts failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Equinox's motion which was for summary judgment dismissing the fourth cause of action in the third-party complaint.

The Supreme Court also should have granted that branch of Equinox's motion which was pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing the fifth cause of action in the third-party complaint, which sought to recover damages for negligence. A property owner, or one in possession or control of property, "has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" (Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d 946, 947; see Millan v AMF Bowling Ctrs., Inc., 38 AD3d 860, 860-861). This duty arises when there is an ability and an opportunity to control such conduct, and an awareness of the need to do so (see Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt. Co., 2 AD3d 590, 591; Cutrone v Monarch Holding Corp., 299 AD2d 388, 389). In support of this branch of its motion, Equinox submitted evidence demonstrating, prima facie, that it did not have the ability and opportunity to control the conduct at issue through the exercise of reasonable measures, and that it had no awareness of the need to control the conduct of the child (see Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt. Co., 2 AD3d at 591; Lazar v TJX Cos., 1 AD3d 319, 319). In opposition, Roberts failed to raise a triable issue of fact (see Hillen v Queens [*3]Long Is. Med. Group, P.C., 57 AD3d at 947; Victor C. v Lazo, 30 AD3d 365, 367). Accordingly, the Supreme Court should have granted that branch of Equinox's motion which was for summary judgment dismissing the fifth cause of action in the third-party complaint.

Contrary to the Supreme Court's determination, there is no basis to believe that facts necessary to properly oppose the motion for summary judgment would be uncovered through disclosure (see Gabrielli Truck Sales v Reali, 258 AD2d 437, 438; Glassman v Catli, 111 AD2d 744, 745).

Henderson v Kingsbrook Jewish Med. Ctr., 2012 NY Slip Op 00334 (2nd Dept., 2012)

In determining 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" (Leon v Martinez, 84 NY2d 83, 87-88; see Nonnon v City of New York, 9 NY3d 825, 827). In addition, the pleading is to be "afforded a liberal construction" (Sarva v Self Help Community Servs., Inc., 73 AD3d 1155, 1155).

Here, the complaint states a cause of action alleging a violation of the plaintiffs' right of sepulcher, since the facts stated therein allege that the defendant interfered with the plaintiffs' "absolute right to the immediate possession of a decedent's body for preservation and burial" (Melfi v Mount Sinai Hosp., 64 AD3d 26, 31). Although the delay in releasing the decedent's body was not inordinate and may ultimately be determined to have been reasonable and proper under all of the circumstances, "[w]hether [the] plaintiff can ultimately establish [his] allegations is not part of the calculus in determining a motion to dismiss [made pursuant to CPLR 3211(a)(7)]" (ECBI, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1111).

Fleyshman v Suckle & Schlesinger, PLLC, 2012 NY Slip Op 00176 (2nd Dept., 2012)

Moreover, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged a violation of Judiciary Law § 487. Even as amplified by the plaintiff's affidavit, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted "with intent to deceive the court or any party" (Judiciary Law § 487[1]; see Jaroslawicz v Cohen, 12 AD3d 160, 160-161). Further, the plaintiff's allegation that the defendants "willfully delayed [her] recovery with a view to their own ends and benefit" is a bare legal conclusion, "which is not entitled to the presumption of truth normally afforded to the allegations of a complaint" (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969; see Judiciary Law § 487[2]).