Category: CPLR R. 3212

Just a little 3212, including (f).

Gardner v Cason, Inc., 2011 NY Slip Op 01971 (App. Div., 2nd 2011)

It was premature to award summary judgment at this stage of the case. "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793). The plaintiff and the defendant Grumbly submitted, among other things, affidavits containing discrepancies pertaining to the circumstances of the accident, including as to the decedent's culpability. Furthermore, no depositions have been conducted, including any depositions of key eyewitnesses identified in the police accident report. Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability with leave to renew after the completion of discovery (see Gruenfeld v City of New Rochelle, 72 AD3d 1025; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Martinez v Ashley Apts. Co., LLC, 44 AD3d 830; Tyme v City of New York, 22 AD3d 571; see generally CPLR 3212[f]).

Carden v City of New York, 2011 NY Slip Op 01787 (App. Div., 2nd 2011)

In support of their motion for summary judgment, the defendants Hallen Construction Co., Inc. (hereinafter Hallen), and Keyspan Energy Delivery N.Y.C. (hereinafter Keyspan) submitted evidence sufficient to establish, prima facie, that they did not create the alleged defect in the roadway which caused the plaintiff driver to sustain injuries (see Courtright v Orange and Rockland Utils., Inc., 76 AD3d 501; Garcia v City of New York, 53 AD3d 644; Rubina v City of New York, 51 AD3d 761). In opposition, the plaintiffs submitted evidence sufficient to raise triable issues of fact as to the exact situs of the defect and whether Hallen and Kesypan created the alleged defect. Generally, an opposing party must make a showing of evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557). "Under certain circumstances [o]ur courts have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment'" (Guzman v Strab Constr. Corp., 228 AD2d 645, 646 quoting Zuilkowski v Sentry Ins., 114 AD2d 453, 454; see Phillips v Kantor & Co., 31 NY2d 307). Here, the accident report from the New York City Sanitation Department, which was produced during discovery and had sufficient indicia of reliability, raised a triable issue of fact as to whether the alleged defect was located within the area where Keyspan and Hallen performed their work (see Asare v Ramirez, 5 AD3d 193; Guzman v Strab Constr. Corp., 228 AD2d 645).

Heath v Liberato, 2011 NY Slip Op 01803 (App. Div., 2nd 2011)

In opposition, the defendant failed to raise a triable issue of fact. The defendant's opposition merely raised "feigned" issues of fact, which are insufficient to defeat a motion for summary judgment (Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 257; see Miller v City of New York, 214 AD2d 657; Garvin v Rosenberg, 204 AD2d 388). The defendant also failed to demonstrate that further discovery was warranted (see Benedikt v Certified Lbr. Corp., 60 AD3d 798; Lopez v WS Distrib., Inc., 34 AD3d 759).

Anastasio v Berry Complex, LLC, 2011 NY Slip Op 01778 (App. Div., 2nd 2011)

None of the defendants submitted evidence sufficient to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Contrary to York's contention, a triable issue of fact exists as to whether it launched an instrument of harm by allegedly negligently erecting the sidewalk shed (see Manicone v City of New York, 75 AD3d 535; Ragone v Spring Scaffolding, Inc., 46 AD3d 652; Phillips v Seril, 209 AD2d 496). With respect to Design Built, triable issues of fact exist as to whether it exercised control over the construction site, as the general contractor, and whether it created or had actual or constructive notice of the alleged hazardous conditions (see Mancone v City of New York, 75 AD3d 535). Berry failed to establish, prima facie, that it lacked constructive notice of the alleged ice condition on the sidewalk abutting its property (see Martinez v Khaimov, 74 AD3d 1031; see generally Administrative Code of the City of New York 7-210). Since none of the parties satisfied their prima facie burden as the movants, we need not review the sufficiency of the plaintiff's opposition papers (see Totten v Cumberland Farms, Inc., 57 AD3d 653; Joachim v 1824 Church Ave., Inc., 12 AD3d 409).

AGFA Photo USA Corp. v Chromazone, Inc., 2011 NY Slip Op 01517 (App. Div., 1st 2011)

Defendants' argument that plaintiff's second motion for summary judgment should have been treated as a motion to renew, is improperly raised for the first time on appeal (see Callisto Pharm., Inc. v Picker, 74 AD3d 545 [2010]). Were we to review this argument, we would find that the court's treatment of the motion was entirely appropriate. When the court denied plaintiff's initial motion for summary judgment, it did so "without prejudice to another motion for summary judgment" with the submission of additional evidence (see CPLR 3212[f]).

Plaintiff established its prima facie entitlement to judgment as a matter of law on its claims for breach of the equipment lease agreement and service maintenance agreement by submitting the subject agreements, the agreement assigning AFGA Corporation's rights to plaintiff and evidence of nonpayment in the form of the demand notices (see Advanta Leasing Servs. v Laurel Way Spur Petroleum Corp., 11 AD3d 571 [2004]). In opposition, defendants failed to raise a triable issue of fact. Contrary to defendants' argument that plaintiff failed to meet its obligations under the service maintenance agreement, any alleged failure by plaintiff to provide parts and services had no bearing on defendants' breach under the lease agreement. Moreover, the record establishes that plaintiff indeed continued servicing the equipment during the relevant time period.

Plaintiff also established its entitlement to summary judgment on its conversion cause of action. Plaintiff submitted evidence demonstrating that the individual defendant exercised unauthorized dominion and control over the equipment by making unapproved alterations to it, by removing the equipment from the installation site without notice or consent and by relocating the equipment to his new business (see Meese v Miller, 79 AD2d 237, 242 [1981] ["(c)onversion is any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessory right of another in the property"]). Defendants' opposition failed to raise a triable issue of fact. The affidavit from  the individual defendant conflicted with his deposition testimony and appears tailored to avoid the consequences of his earlier testimony (see e.g. Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]).


 

CPLR 2101 and translations. Also No SJ with out issue being joined (this time)

CPLR R. 2101 Form of papers

CPLR R. 3212

Reyes v Arco Wentworth Mgt. Corp., 2011 NY Slip Op 01988 (App. Div., 2nd 2011)

This Court has held that the absence of a translator's affidavit, required of foreign language witnesses, renders the witness's English affidavit facially defective and inadmissible (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902). The requirement of CPLR 2101(b) that affidavits of non-English speaking witnesses be accompanied by a translator's affidavit setting forth the translator's qualifications and the accuracy of the English version submitted to the Court makes sense. Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law (see Andre v Pomeroy, 35 NY2d 361, 364). Parties opposing a motion for summary judgment are required to proffer evidence that is in admissible form, with rare exceptions not applicable here. A witness at trial would not be permitted to testify in a foreign language, or to proffer documents in a foreign language, without the benefit of a sworn English language translation (see Quispe v Leml & Wolff, Inc., 266 AD2d 95, 96; cf. People v Watkins, 12 AD3d 165, 166), and there is no valid reason why a more relaxed evidentiary standard should govern summary judgment applications. Accordingly, the plaintiff's English-language affidavit, without a corresponding affidavit from a qualified translator, cannot be considered in opposition to Ramapo's motion.

Ramapo's argument about the inadmissibility of the plaintiff's English-language affidavit in opposition, while correct, does not change the outcome of this appeal. Ramapo proffered the plaintiff's translated deposition transcript in reply papers, ostensibly to show the plaintiff's need at that time of a translator. While documents which are submitted for the first time in reply cannot be used by a movant to meet the prima facie burden of proof for summary judgment (see Tingling v C.I.N.H.R., Inc., 74 AD3d 954, 956; Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 71 AD3d 739; Edwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721; Rengifo v City of New York, 7 AD3d 773), here, the deposition transcript was not proffered by Ramapo to meet its prima facie burden. Instead, the transcript of the plaintiff's translated deposition, which sufficiently mirrors his non-compliant affidavit (see CPLR 2101[b]), was proffered to address perceived deficiencies in the plaintiff's opposition to summary judgment. The transcript independently raised questions of fact so as to defeat Ramapo's own motion. Ramapo, as the party proffering the deposition transcript in its reply, cannot object to this Court's consideration of the entirety of the exhibit, including those portions that raise triable issues of fact sufficient to defeat summary judgment.

Contrary to Ramapo's contention set forth in footnote eight of its brief, that the Supreme Court failed to disregard the plaintiff's inadmissible English language affidavit, a close reading of the order appealed from does not demonstrate that the Supreme Court relied on the plaintiff's inadmissible affidavit at all. The order describes facts and allegations to which the "plaintiff testified." Such "testimony," as described, may carefully and appropriately refer merely [*5]to the plaintiff's deposition which, as noted, is admissible.
IV.Appeal by Arco

Arco separately moved for summary judgment dismissing the complaint. The Supreme Court denied the motion on the ground that since issue had not yet been joined between Arco and the plaintiff, the motion was premature (see CPLR 3212[a]). Furthermore, the Supreme Court declined to treat what was in actuality a pre-answer motion to dismiss as a motion for summary judgment. We affirm the Supreme Court's determination (see CPLR 3212[a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Shaibani v Soraya, 71 AD3d 1121).

Just a little disclosure stuff and a bit of SJ.

Mendoza v Highpoint Assoc., IX, LLC, 2011 NY Slip Op 01719 (App. Div. 1st 2011)

As a threshold procedural issue, we find no legal impediment to examining the merits of defendant's motion for summary judgment. Contrary to Supreme Court's determination, the fact that defendant was precluded from presenting evidence at trial on liability did not affect its right to move for summary judgment. Generally, a defendant's preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment (see Northway Eng'g v Felix Indus., 77 NY2d 332 [1991]; Rosario v Humphreys & Harding, 301 AD2d 406 [2003]). Indeed, a preclusion order does not relieve the plaintiff of the burden of proving its case (see Northway, 77 NY2d at 337; Murphy v Herbert Constr., Co., 297 AD2d 503 [2002]; Israel v Drei Corp., 5 AD2d 987 [1958]); nor does it preclude affirmative defenses (see e.g., Ramos v Shendell Realty Group, Inc., 8 AD3d 41 [2004] [affirmative defense of comparative negligence still a viable defense despite the preclusion order]; Mendez v Queens Plumbing Supply, Inc., 12 Misc 3d 1064 [Sup Ct, Bronx County 2006] [same]; see also Moskowitz v Garlock, 23 AD2d 943 [1965]). Therefore, a preclusion order preventing evidence at trial on liability is unlike the striking of an answer, which effectively resolves a claim against the nondisclosing defendant (see Rokina Opt. Co. v Camera King, 63 NY2d 728 [1984]).

Accordingly, summary judgment should be granted where the non-disclosing defendant [*4]can establish entitlement to such relief despite the preclusion order barring it from offering its own affirmative evidence as to liability. This Court's determination in Murphy v Herbert Constr. Co. (297 AD2d 503 [2002]) aptly illustrates the point. In Murphy, the plaintiff moved for summary judgment on liability pursuant to Labor Law § 241(6), and the defendant subcontractor cross-moved for summary judgment dismissal of the claims under Labor Law §§ 240(1) and 241(6). Supreme Court granted plaintiff summary judgment and denied defendant's cross motion in its entirety. This Court reversed and granted the non-disclosing defendant summary judgment despite the fact that the motion court had precluded it from presenting evidence at trial on liability. Specifically, this Court dismissed the Labor Law §§ 240(1) and 241(6) claims asserted against the subcontractor because the plaintiff's evidence failed to allege a key element of such claims (id. at 504).

Plaintiff's reasoning for distinguishing Murphy — adopted by the dissenters — is not persuasive. Plaintiff argues that Murphy is inapplicable, in that the plaintiff there was the movant, but failed to produce any evidence establishing a prima facie case, a fundamentally different procedural posture from that at issue here. Plaintiff contends that, since defendant has the burden of establishing a prima facie case on its motion for summary judgment through the tendering of evidence and it is barred from tendering such evidence because of the preclusion order, it cannot meet its burden.

The divergent posture of this case vis-à-vis Murphy changes nothing. What is significant is that in both cases the preclusion order did not bar the defendant from challenging the sufficiency of the plaintiff's evidence; the answer was not stricken and the preclusion did not extend beyond limiting the defendant's affirmative evidence at trial on liability. The application of the remedy of preclusion to a specific category of evidence, as applied against a defendant, should not be a device for precluding a defendant from challenging the sufficiency of the plaintiff's evidence. In fact, courts have consistently held that a defendant may establish its prima facie entitlement to judgment as a matter of law by relying upon the plaintiff's evidence, including the plaintiff's own deposition, which may negate liability (see e.g. Acheson v Shepard, 27 AD3d 596 [2006]; Wellington v Manmall, LLC, 70 AD3d 401 [2010]).

For example, in DeSantis v Lessing's, Inc. (46 AD3d 742 [2007]), the defendant established its prima facie entitlement to judgment as a matter of law by submitting the plaintiff's deposition testimony, in which she was unable to explain what caused her to trip and fall. Similarly, in Frank v Time Equities (292 AD2d 186 [2002]), this Court held that "[w]hile a defendant moving for summary judgment [in a slip-and-fall case] has the burden of demonstrating entitlement to dismissal as a matter of law, there is no need for a defendant to submit evidentiary materials . . . where the plaintiff failed to claim the existence of notice of the condition" (id. at 186). Thus, while Murphy arose in a different procedural context, its ruling underscores the basic rule applicable here: that a defendant can prevail at the summary judgment stage by challenging the sufficiency of the plaintiff's evidence.

Indeed, it cannot be seriously disputed that a preclusion order does not prevent a defendant from challenging a plaintiff's evidence at trial by moving for a directed verdict at the end of the plaintiff's case on the ground that the latter has failed to make a prima facie case. It is [*5]also beyond cavil that a motion for summary judgment is the procedural equivalent of a trial (see Crowley's Milk Co. v Klein, 24 AD2d 920 [1965]). In fact, CPLR 3212(b) implicitly draws an analogy between the motion for summary judgment and the motion for a directed verdict made at trial [FN1]. In each instance, the court is taking the case away from the fact finder by determining that there is nothing to try. Of course, the main difference is that on a summary judgment motion the judge is asked to decide the issue on papers alone while in a motion for a directed verdict, the judge has the advantage of hearing live testimony.

Significantly, we perceive no imperative policy consideration that militates against allowing by summary judgment motion what a defendant can do at trial. Contrary to the dissenters' assertions, such determination does not "perversely undermine the point of the order." On the contrary, while the purpose of a preclusion order is to make the demanding party whole (see Northway, 77 NY2d at 337), whatever disadvantage plaintiff sustained as a result of defendant's failure to provide the required discovery was overcome when Supreme Court effectively prohibited defendant from offering its own affirmative evidence at trial on liability. To further preclude defendant from making a motion for summary judgment to challenge plaintiff's evidence — as a defendant can do at trial — would give plaintiff more relief than is warranted (id.).

For the foregoing reasons, we are satisfied that the preclusion order does not constitute a procedural bar to this Court's proper disposition of defendant's motion for summary judgment on the merits. To be sure, as plaintiff correctly points out, we are mindful of the fact that defendant, by its own failure to comply with the conditional preclusion order, should be barred from offering its own affirmative evidence as to liability, either at trial or on the motion, regardless of the order's reference to "at trial." The result, otherwise, would perversely undermine the point of the order by allowing defendant to benefit from the short cut of summary judgment by use of the same evidence that otherwise would have been barred at trial. Hence, for present purposes, all of defendant's affirmative evidence is precluded.[FN2]

Ehrenberg v Starbucks Coffee Co., 2011 NY Slip Op 01795 (App. Div. 2nd 2011)

Since the affidavit of the plaintiff's nanny was insufficient to raise a triable issue of fact as to whether the ramp upon which the she allegedly wheeled the stroller was negligently designed, installed, or maintained, we need not address Starbucks' contention that the Supreme Court, in denying its cross motion for summary judgment, erred in considering that affidavit because the nanny's identity was not properly disclosed by the plaintiffs in their responses to the defendants' demands for disclosure or a preliminary conference order (see Williams v ATA Hous. Corp., 19 AD3d 406, 407). However, the affidavit of the plaintiffs' expert, which the plaintiffs also submitted in opposition to the cross motion, should not have been considered by the Supreme Court, since that expert witness was not identified by the plaintiffs until after the note of issue and certificate of readiness were filed, attesting to the completion of discovery, and the plaintiffs offered no valid excuse for the delay (see Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917; Ortega v New York City Tr. Auth., 262 AD2d 470). Accordingly, the Supreme Court should have granted Starbucks' cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

SJ and Med Mal

Stukas v Streiter, 2011 NY Slip Op 01832 (App. DIv., 2nd 2011)

Thus, "candor requires the admission that our past decisions have lacked a precise consistency" (Miller v Miller, 22 NY2d 12, 15). Accordingly, we now clarify that our decisions reflecting the rule stated in Alvarez constitute the more accurate articulation of the applicable standard. To reiterate, in a medical malpractice action, a plaintiff opposing a defendant physician's motion for summary judgment must only submit evidentiary facts or materials to rebut the defendant's prima facie showing (see Alvarez v Prospect Hosp., 68 NY2d at 324). This means that if the defendant demonstrates only that he or she did not depart from good and accepted medical practice, the plaintiff need only raise a triable issue of fact as to whether such a departure occurred. The plaintiff is required to raise a triable issue of fact as to causation only in the event that the defendant makes an independent prima facie showing that any claimed departure was not a proximate cause of the plaintiff's injuries.

It's a long decision and this is a small part of it.  Those who are into the Med. Mal. thing should read it in full.

3212; Successive SJ; and stuff

CPLR R. 3212

CPLR R. 3211

11 Essex St. Corp. v Tower Ins. Co. of N.Y., 2011 NY Slip Op 01127 (App. Div., 1st 2011)

The court correctly denied DeSimone's motion for summary judgment on the grounds that it had denied a prior summary judgment motion by DeSimone and no new factual assertions and evidence were submitted or other sufficient cause shown for DeSimone's making the second motion (see Jones v 636 Holding Corp., 73 AD3d 409 [2010]; Forte v Weiner, 214 AD2d 397 [1995], lv dismissed 86 NY2d 885 [1995]).

Lau v 7th Precinct of the Police Dept. of the County of N.Y., 2011 NY Slip Op 01342 (App. Div., 1st 2011)

Although defendants stated in their notice of motion that they sought an order pursuant to CPLR 3212 granting summary judgment, in the supporting affirmation, they argued that the complaint failed to state a cause of action (CPLR 3211[a][7]), and the exhibits annexed to the affirmation consist solely of pleadings. Upon analyzing the pleadings, the motion court granted defendants' motion "for summary judgment . . . dismissing plaintiff's complaint for failure to state a cause of action."

Summary judgment was properly granted although the complaint could have been dismissed pursuant to CPLR 3211(a)(7). Also, plaintiff's argument that the court should have denied defendants summary judgment because the evidence raises issues of fact whether he had a special relationship with the police is unavailing. His General Municipal Law § 50-h hearing testimony is insufficient to establish the elements of such a relationship (see Luisa R. v City of New York, 253 AD2d 196, 203 [1999]; Artalyan, Inc. v Kitridge Realty Co., Inc., 52 AD3d 405, 407 [2008]). Among other things, the police advised plaintiff that they could not help him in this matter and that he would be arrested if he continued to call them. In the face of this evidence, plaintiff cannot establish reasonable reliance upon any purported promise of police protection.

Plaintiff's proposed amended complaint failed to remedy the factual deficiencies in his original complaint (Pacheco v Fifteen Twenty Seven Assoc., 275 AD2d 282, 284 [2000]; Schulte [*2]Roth & Zabel, LLP v Kassover, 28 AD3d 404 [2006]).

Inadmissible hearsay not enough to defeat SJ when that’s all there is

Roche v Bryant, 2011 NY Slip Op 01011 (App. Div., 2nd 2011)

The plaintiff failed to raise a triable issue of fact in opposition. The only evidence offered by the plaintiff to demonstrate that, prior to this incident, the dog actually exhibited any fierce or hostile tendencies was inadmissible hearsay (see Stock v Otis El. Co., 52 AD3d 816, 817 [inadmissible hearsay "is insufficient to bar summary judgment if it is the only evidence submitted" (internal quotation marks omitted)]; Rodriguez v Sixth President, Inc., 4 AD3d 406; Palumbo v [*2]Nikirk, 59 AD3d at 691; Sers v Manasia, 280 AD2d at 540; Lugo v Angle of Green, 268 AD2d 567).

The bold is mine.

Successive SJ

Greene v Sager, 2010 NY Slip Op 08068 (App. Div., 2nd 2010)

Prior to discovery, the Supreme Court denied a motion by the plaintiff and cross motion by the defendants for summary judgment. After discovery, the defendants submitted additional evidence and again moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the issue of liability. The Supreme Court determined the motion and cross motion on the merits, noting that its previous order denying the parties' motions had been, in effect, without prejudice. Therefore, contrary to the plaintiff's contention, the defendants' motion did not offend the rule against successive motions for summary judgment (see Carella v Reilly & Assoc.,6 AD3d 373, 375; Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39; cf. Sutter v Wakefern Food Corp., 69 AD3d 844, 845).

Brill and CPLR R. 3211(a)(7)

CPLR R. 3211(a)(7), as most of you know, permits a motion to dismiss because the complaint fails to state a cause of action.  Unlike CPLR R. 3212, there is no 120-day timeline.  The standard of review is different as well.[1]  You can make the motion at any time.[2] But it needs to be converted.  See, Rich v. Lefkovits, 56 N.Y.2d 276 (Ct. App. 1982).

But can you get around CPLR R. 3212's 120-day timeline[3] by calling your summary judgment motion as motion to dismiss.  The short answer is no;[4] however, an explanation is required.

CPLR R. 3211(a)(7) should be used to weed out those complaints that don’t state a cause of action.  That’s it.  A complaint either states a cause of action or doesn’t.  Affidavits aren’t appropriate.  But, if an affidavit is attached, the motion turns into a different animal—it shouldn’t, but it generally does.  No longer will the court limit its inquiry into whether the complaint states a cause of action; now the inquiry is, does the plaintiff have a cause of action.  Whether a plaintiff states a cause of action or has a cause of action is a different question than whether the plaintiff will ultimately be successful, which is “not part of the calculus in determining a motion to dismiss.”[5]

Whether a plaintiff will ultimately be successful is fodder for a motion for summary judgment.  It follows then, that any motion made under 3211(a)(7) that isn’t directed at the pleadings is a summary judgment motion is disguise.[6]  That disguised motion is subject CPLR 3212’s 120-day timeline.  But to get back to my earlier point, any motion to dismiss under (a)(7) that utilizes and affidavit, is not proper.  I don’t care what anyone says.  If the motion doesn’t fit within 3211, then it’s a 3212 motion, subject to the time limit.

Now the question is why should it be subject to the time limit.  The answer is Brill v City of New York, 2 NY3d 648 (Ct. App. 2004).[7]  The Court of Appeals could have modified or completely done away with Brill in Crawford v Liz Claiborne, Inc., 11 NY3d 810 (Ct. App. 2008), but it didn’t.  It remains good law.

There is no reason to permit disguised summary judgment motions, no matter how meritorious, under CPLR R. 3211(a)(7).  Otherwise, Brill is meaningless.  Motions made under (a)(7) that are converted to Summary Judgment motions or those 3211(a)(7) motions were both parties charted a summary judgment course shouldn’t be permitted either.

If anyone is interested, JT’s post prompted me to write this post.

 

[1] “In assessing a motion to dismiss made pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and are accorded every favorable inference.” Garner v China Natural Gas, Inc., 2010 NY Slip Op 02095 (App. Div., 2nd, 2010)

[2] For some interesting reading check out Butler v Catinella, 58 AD3d 145(App. Div., 2nd 2008), where the Appellate Division, Second Department corrected itself, and allowed the defense to be interposed in an answer.

[3] This is a hard timeline, with very little wiggle room.  Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)

[4] Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010); West Broadway Funding Assoc. v Friedman, 2010 NY Slip Op 04781 (App. Div., 2nd, 2010)

[5] Crepin v Fogarty, 2009 NY Slip Op 01272 (App. Div., 2nd, Feb. 19, 2009).  See also; Etzion v Etzion, 2009 NY Slip Op 03688 (App. Div., 2nd, 2009)

[6] In most, but not all cases.  It is possible that the 3211(a)(7) isn’t a disguised summary judgment motion; that it is just a garbage motion.

[7]

We conclude that "good cause" in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute—only the movant can show good cause—as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be "good cause."

CPLR R. 3212(f)

CPLR R. 3212(f)

Anne Koplick Designs, Inc. v Lite, 2010 NY Slip Op 06356 (App. Div., 2nd, 2010)

Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability (see CPLR 3212[b]; Yiouti Rest. v Sotiriou, 151 AD2d 744, 745). In support of their motion, the plaintiffs submitted an expert affirmation of an attorney establishing that the defendant Justin N. Lite failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, among other things, advising the plaintiffs to default in a lawsuit commenced against them in California and advising them that a default judgment obtained in California would not be enforceable in New York, a clearly incorrect statement of the law (see Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511; Yiouti Rest. v Sotiriou, 151 AD2d at 745). The plaintiffs' submissions also established that, but for the defendants' malpractice, they would have succeeded in defending the underlying claim. In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). [*2]

Moreover, while determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615; see Williams v D & J School Bus, Inc., 69 AD3d 617, 619; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). The defendants failed to provide an evidentiary basis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d 619, 620).

Also interesting was the portion of about out-of-state default judgments.  I checked the two sites that the Court cites to, but neither appear to say anything about out-of-state default judgments.  Compare Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20130 (App. Term, 2nd, 11th and 13th, Jud. Dists., 2010), which cites to Zimmerman v Tower Ins. Co. of N.Y., 13 AD3d 137 (App. Div., 1st, 2004)

Hoisted by one’s own petard

JT posted the case first, but I like my title better.

Abdalla v Mazl Taxi, Inc., 2010 NY Slip Op 06071 (App. Div., 2nd, 2010)

Contrary to the Supreme Court's determination, the defendants failed to
meet their prima facie burden of showing that the plaintiff did not
sustain a serious injury within the meaning of Insurance Law § 5102(d)
as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79
NY2d 955, 956-957). The defendants, in support of their motion, relied
on some of the plaintiff's own medical reports. One such report was that
of the plaintiff's treating physician, Dr. Joyce Goldenberg, which
revealed the existence of a significant limitation in the plaintiff's
right knee flexion (see Guerrero v Bernstein, 57 AD3d 845; Mendola v Demetres, 212
AD2d 515). The other was an operative report of the plaintiff's
treating orthopedic surgeon, Dr. Richard Seldes, which revealed, inter
alia, the existence of a tear in the posterior horn of the medial
meniscus in the right knee. Since the defendants did not meet their
prima facie burden, it is unnecessary to determine whether the papers
submitted by the plaintiff in opposition were sufficient to raise a
triable issue of fact (see Guerrero v Bernstein, 57 AD3d at 845; Mendola v Demetres, 212 AD2d at 515).