CPLR R. 3212 – Page 6

CPLR R. 3212 and R. 3116: proof, inadmissible at trial, but sufficient to defeat SJ

CPLR R. 3116 Signing
deposition; physical preparation; copies

(a) Signing.

CPLR R. 3212
Motion for summary judgment

Moffett v Gerardi, 2010 NY Slip Op 05990 (App. Div., 2nd, 2010)

"A certificate of acknowledgment attached to an instrument such as a
deed raises a presumption of due execution, which presumption, in a case
such as this, can be rebutted only after being weighed against any
evidence adduced to show that the subject instrument was not duly
executed" (Son Fong Lum v Antonelli, 102 AD2d 258, 260-261, affd
64 NY2d 1158; see Beshara [*2]v
Beshara, 51 AD3d 837, 838). Here, the defendant made a prima
facie showing of entitlement to judgment as a matter of law by providing
a copy of the notarized January 1998 deed which included a certificate
of acknowledgment (see Beshara v Beshara, 51 AD3d 837; Elder v Elder, 2 AD3d 671).

In opposition, the plaintiff submitted his own affidavit
contesting the signature on the deed, the deposition transcript of the
notary public who purportedly notarized the deed, and an unsworn report
of a handwriting expert. The plaintiff failed to establish that he had
sent the deposition transcript to the notary public for review pursuant
to CPLR 3116(a), thereby rendering the transcript inadmissible at trial (see Marmer v IF USA Express, Inc., 73 AD3d 868;
Martinez v 123-16 Liberty Ave. Realty Corp., 47
AD3d 901, 902; McDonald v Mauss, 38 AD3d 727, 728; Pina v Flik Intl. Corp., 25 AD3d 772; Scotto v Marra, 23 AD3d 543; Santos v Intown Assoc., 17 AD3d 564).
However, this failure did not preclude the Supreme Court from
considering the transcript in opposition to the motion for summary
judgment (see Friends of Animals v Associated Fur Mfrs., 46 NY2d
1065, 1068; Phillips v Kantor & Co., 31 NY2d 307; Franklin v 2 Guys From Long Pond, Inc., 50 AD3d
846; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453; Silvestri
v Iannone, 261 AD2d 387; Zuilkowski v Sentry Ins., 114 AD2d
453). Generally, when opposing a motion for summary judgment, a party
must submit evidence in admissible form sufficient to raise a triable
issue of fact (see Zuckerman v City of New York, 49 NY2d 557). In
certain circumstances, "proof which might be inadmissible at trial may,
nevertheless, be considered in opposition to a motion for summary
judgment" (Zuilkowski v Sentry Ins., 114 AD2d 453), as long as
the party seeking to use such evidence provides an acceptable excuse for
the failure to tender the evidence in admissible form (see Friends
of Animals v Associates Fur Mfrs., 46 NY2d at 1068; Allstate Ins.
Co. v Keil, 268 AD2d 545), and the inadmissible evidence does not
provide the sole basis for the denial of summary judgment (see
Phillips v Kantor & Co., 31 NY2d 307).

Here, the plaintiff's excuse that it was his understanding that the
defendant, as the party who had noticed the deposition and hired the
court reporter, was forwarding a copy of the deposition transcript to
the notary public for review, was reasonable. Moreover, the notary
public's deposition testimony that the deed was not notarized in the
usual manner in which he notarized documents and, as a result, that he
would not testify that the signature on the deed belonged to the
plaintiff, along with the plaintiff's own affidavit that he did not sign
the subject deed, rebutted the presumption of the deed's validity as
created by the certificate of acknowledgment (see Alvarez v Prospect
Hosp., 68 NY2d 320; Hoffman v Kraus, 260 AD2d 435).
Accordingly, since there is a triable issue of fact, the Supreme Court,
upon reargument, should have adhered to its prior determination denying
the defendant's motion for summary judgment dismissing the complaint.

The bold and underline are mine.

CPLR R. 3212(f) Hope and Speculation not Enough

CPLR R. 3212
Motion for summary judgment
(f)
Facts unavailable to opposing party

Essex Ins. Co. v Michael Cunningham Carpentry, 2010 NY Slip Op 04732 (App. Div., 2nd, 2010)

Andreassen's contention that the motion for summary judgment was
premature is without merit. It failed to offer any evidentiary basis to
suggest that discovery may lead to relevant evidence. The hope and
speculation that evidence sufficient to defeat the motion might be
uncovered during discovery was an insufficient basis to deny the motion (see Peerless Ins. Co. v Micro Fibertek, Inc., 67
AD3d 978, 979; Tedesco v Tedesco, 64 AD3d 583, 584; Conte v Frelen Assoc., LLC, 51 AD3d 620,
621).

There are plenty of cases on this issue, but I like the brevity of this one.

Just after I read this one, I found another.

Family-Friendly Media, Inc. v Recorder Tel. Network, 2010 NY Slip Op 04735 (App. Div., 2nd, 2010)

CPLR 3212(f) permits a party opposing summary judgment to obtain further
discovery when it appears that facts supporting the position of the
opposing party exist but cannot be stated (see Aurora Loan Servs.,
LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Juseinoski v New
York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). Under the
circumstances of this case, the Supreme Court properly denied that
branch of the plaintiff's motion which was for summary judgment on the
complaint as premature, without prejudice to renew (see Matter of
Fasciglione,AD3d, 2010 NY Slip Op 03926 [2d Dept 2010]; Baron v
Incorporated Vil. of Freeport, 143 AD2d [*2]792,
792-793).

And one from the First Department.

Montalvo v Chiaramonte, 2010 NY Slip Op 04707 (App. Div., 1st, 2010)

Neither plaintiffs nor Chiaramonte submitted any affidavits or evidence
to show that "facts essential to justify opposition [to the Tarts'
motion] may exist but cannot then be stated" (CPLR 3212[f]). Nor did
they ever challenge the motion court's finding that the "Tart vehicle
never came into contact with the decedent."

No Subsitute for SJ: CPLR R. 3212(a)

CPLR R. 3212(a)

Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010)

Initially, we note that while the defendants characterized their motion as one for in limine relief to dismiss the complaint for failure to establish a prima facie case, the record reveals that the motion actually was one for summary judgment. "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" (Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810-811; see Rivera v City of New York, 306 AD2d 456, 457). Moreover, the Supreme Court improvidently exercised its discretion in considering this late motion since the defendants failed to offer any excuse for their failure to timely move for summary judgment (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648; Nobile v Town of Hempstead, 17 AD3d 647; Clermont v Hillsdale Indus., 6 AD3d 376, 377). Such failure warrants denial of the motion without consideration of the merits thereof (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 306 AD2d 456). Accordingly, we reinstate the complaint.

[Edit 6/4] found another one

West Broadway Funding Assoc. v Friedman, 2010 NY Slip Op 04781 (App. Div., 2nd, 2010)

CPLR R. 3212; 4518 Gaps in proof not enough. Records not admissible. Plus CPLR 3116(a): Deposition not signed

CPLR R. 3212 Motion for summary judgment

CPLR R. 4518 Business records

CPLR R. 3116 Signing deposition; physical preparation; copies

(a) Signing.

Shafi v Motta, 2010 NY Slip Op 03895 (App. Div., 2nd, 2010)

On their motion for summary judgment, the defendants had the burden of
establishing, by proof in admissible form, their prima facie entitlement
to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v
City of New York, 49 NY2d 557, 561; Myers v Ferrara, 56 AD3d
78, 83). This burden may be satisfied only by the defendant's
affirmative demonstration of the merit of the defense, rather than
merely by reliance on gaps in the plaintiffs' case (see DeFalco v
BJ's Wholesale Club, Inc., 38 AD3d 824, 825; Cox v Huntington
Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd.
Liab. Co., 27 AD3d 539; Mondello v DiStefano, 16 AD3d 637,
638). Here, the defendants submitted [*2]hospital
laboratory reports and records of the New York City Department of
Health and Mental Hygiene. As the Supreme Court concluded, however,
because these documents were neither certified nor authenticated, and
thus were not in admissible form, they could not be considered on the
motion (see CPLR 4518[c]; Banfield v New York City Tr. Auth.,
36 AD3d 732; Baez v Sugrue, 300 AD2d 519, 520; cf. Whitfield v
City of New York, 48 AD3d 798, 799). Moreover, the affirmation of
the defendants' attorney submitted with very brief excerpts of
deposition testimony was insufficient to establish the defendants'
entitlement to judgment as a matter of law (see Irving v Great Atl.
& Pac. Tea Co., 269 AD2d 358, 359; Cicolello v Limb, 216
AD2d 434). Inasmuch as the defendants failed to carry their burden,
denial of the motion was required without regard to the sufficiency of
the papers submitted in opposition (see Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853; Molina v Belasquez, 1 AD3d 489).

Marmer
v IF USA Express, Inc., 2010 NY Slip Op 04151 (App. Div., 2nd, 2010)

The defendants did not meet their prima facie burden of showing that the
plaintiff did not sustain a serious injury as a result of the subject
accident. Specifically, the defendants failed to show that the plaintiff
did not sustain a medically-determined injury or impairment of a
nonpermanent nature which prevented her from performing substantially
all of the material acts which constituted her usual and customary daily
activities for a period of not less than 90 days during the 180-day
period immediately following the subject motor vehicle accident, as
articulated in Insurance Law § 5102(d) (hereinafter the 90/180-day
category) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy
v Eyler, 79 NY2d 955, 956-957). In the plaintiff's bill of
particulars, she clearly set forth that, as a result of the subject
motor vehicle accident, she sustained, inter alia, a serious injury
under the 90/180-day category of Insurance Law § 5102(d). The affirmed
reports of the defendants' examining physicians did not specifically
relate any of their findings to this 90/180-day category of serious
injury (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65
AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58
AD3d 815; Scinto v Hoyte, 57 AD3d 646). Further, the unsigned
deposition transcript of the plaintiff, which the defendants submitted
in support of their motion, did not constitute admissible evidence in
light of the defendants' failure to demonstrate that the transcript was
forwarded to the plaintiff for her review pursuant to CPLR 3116(a) (see
Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald
v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos
v Intown Assoc., 17 AD3d 564). Since the defendants [*2]failed to meet their prima facie burden, we
need not consider whether the plaintiff's opposition papers were
sufficient to raise a triable issue of fact (see Negassi v Royle, 65
AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk,
60 AD3d 650; Miller v Bah, 58 AD3d 815).

The bold is mine.

CPLR R. 3212(a) Timing: What happens where the case is stricken from the trial calendar

Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)

Defendant's cross motion for summary judgment, which was made in
response to a motion by plaintiff characterized by the motion court as
one to restore the action to the calendar, should have been denied as
untimely, as defendant failed to show good cause for making the cross
motion more than 120 days after the filing of the note of issue (CPLR
3212[a]; Brill v City of New York, 2 NY3d 648, 652
[2004]). At least where, as here, the 120-day time limit had expired
before the case was struck from the calendar, we reject defendant's
argument that the 120-day limit does not apply to cases that have been
struck from the calendar. We note Brill's express prohibition
against consideration of unexcused, untimely motions no matter how
meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37,
39-40 [2005]).

The bold is mine.

CPLR R. 3212 Roundup

Welcome to the CPLR R. 3212 roundup. Like the R. 3211 roundup, some of these decisions are a few months old because I've let them sit. And like the 3211 roundup, this one might be kind of long. Three are about timing, the rest are (f).

Shaibani v Soraya, 2010 NY Slip Op 02771 (App. Div., 2nd, 2010)

CPLR 3212(a) provides that "[a]ny party may move for summary judgment in any action, after issue has been joined." Joinder of issue requires the service of a complaint by the plaintiff and an answer or counterclaim by the defendant (see Chakir v Dime Sav. Bank of N.Y., 234 AD2d 577, 578; Woodworth v Woodworth, 135 AD2d 1143). Here, the plaintiff served the defendant with a summons with notice on or about January 15, 2008. There is no indication in the record that the plaintiff ever served the defendant with a complaint. Instead, the plaintiff moved, and the defendant cross-moved, for summary relief. Under these circumstances, the Supreme Court erred in considering the merits of the motion and cross motion, in effect, for summary judgment, since issue had not yet been joined as required by CPLR 3212 (see CPLR 3212[a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 727).

Hurley v Best Buy Stores, L.P., 2010 NY Slip Op 02424 (App. Div., 1st, 2010)

Defendants failed to demonstrate "good cause" for their belated summary judgment motion (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). The fact that they switched counsel before their prior counsel could take steps for relief from plaintiff's negligence claims does not constitute good cause, since prior counsel should have been aware of various defenses and should have requested such relief in a timely manner in their first summary judgment motion (see Breiding v Giladi, 15 AD3d 435 [2005]; see also Perini Corp. v City of[*2]New York, 16 AD3d 37 [2005]). In light of this decision, we need not consider whether triable issues of fact would have precluded summary relief.

Continue reading “CPLR R. 3212 Roundup”

CPLR R. 3211/3212 timing: Interesting decision from App. Div., 1st

Fofana v 41 W. 34th St., LLC, 2010 NY Slip Op 01830 (App. Div., 1st, 2010)

On December 3, 2004, Fofana commenced an action against, inter alia,
41 West, GSL, and Winoker, and on February 28, 2006, he commenced a
separate action against Midboro. Both actions were filed in Supreme
Court, New York County.
[*2]

Previously, on August 5, 2004,
Haynes had commenced a personal injury action in Supreme Court, Bronx
County, against several of the same defendants. Eventually, the Haynes
action was consolidated in the Bronx with plaintiff's two New York
County actions. Fofana was impleaded as a third-party defendant in the Haynes
action.

By notice dated October 5, 2006, the defendants in the Haynes action
moved for summary judgment on the grounds, inter alia, that the
evidence established that the freight elevator complied with the
elevator code in effect when built, and contained no defects at the time
of the accident. They contended that the elevator door was caused to be
opened by the force of being struck by plaintiff's and Haynes's weight,
as the two fought.

On August 17, 2007, the trial court granted the motion, on the
ground, inter alia, that there was no evidence that defendants had any
notice that the fourth floor hoistway doors had been defective prior to
the incident. In an order entered May 19, 2009, this Court upheld the
dismissal of the complaint, finding that defendants had made a prima
facie showing that the accident was not caused by any defect in the
hoistway door (62 AD3d 519, 521 [2009]). In particular, the Court noted
that an elevator inspector from the New York City Department of
Buildings who had inspected the accident scene within 80 minutes after
the accident, found that the sliding panel for the elevator door "was
bent and protruded into the hoistway in a manner indicating that a
substantial horizontal force had been exerted against the sliding panel"
(id. at 520). The Court also observed that the evidence
indicated that there had not been any problems with the hoistway doors
before the accident occurred (id.).

By notice dated August 31, 2007, two weeks after the trial court
granted summary judgment in the Haynes action, the defendants in
the Fofana action moved to amend their answers to assert the
affirmative defenses of collateral estoppel and res judicata, and, upon
the granting of said relief, for dismissal on those grounds pursuant to
CPLR 3211(5).

By order entered January 15, 2008, the court granted leave to
amend, but denied the motion to dismiss. In so doing, the court found
that, as discovery in the Fofana action had not been completed at
the time of the Haynes motion, Fofana was not in a position to
meaningfully litigate the issues raised on the motion to dismiss.

Subsequently, on February 19, 2008, defendants, who did not
appeal from the January 15 order, moved for leave to file a summary
judgment motion and, upon the granting of leave, for summary judgment
dismissing the complaint. In support of their motion, defendants noted
that the Haynes note of issue had been filed on March 7, 2006,
while the note of issue in this case was only filed on May 7, 2007. They
also observed that the Haynes summary judgment motion had been
served on all parties to the action, including Fofana, who was a
third-party defendant in that action.

Defendants argued they had a reasonable belief that plaintiff, a
party to the Haynes action, would be bound by the Haynes
decision, which was dispositive of all the issues herein. Thus, they
claimed, they made a motion to dismiss pursuant to CPLR 3211(a)(5),
rather than a motion for summary judgment pursuant to CPLR 3212. They
aver that this reasonable belief constitutes "good cause" for the delay
in moving for summary judgment. In opposition, Fofana argued that
defendants failed to show why they could not have sought alternative
relief when filing the motion to dismiss, and that the excuse was akin
to inexcusable law office failure.

The trial court denied the motion as untimely, finding that the
proffered excuse constituted law office failure, with the result that
the requisite good cause to entertain the motion had not been shown. The
court reasoned that defendants should have recognized that the motion [*3]to dismiss could be denied, and thus the
motion for summary judgment should have been made with the prior motion.
We reverse.

CPLR 3212(a) provides that the "court may set a date after which
no [dispositive] motion may be made," and, "[i]f no such date is set by
the court, such motion shall be made no later than one hundred twenty
days after the filing of the note of issue, except with leave of court
on good cause shown." In Brill v City of New York (2 NY3d 648 [2004]),
the Court of Appeals made clear that the statutory deadline should be
strictly enforced, in order to prevent the filing of "[e]leventh-hour
summary judgment motions," a practice that "ignores statutory law,
disrupts trial calendars, and undermines the goals of orderliness and
efficiency in state court practice" (id. at 650-651). It
concluded that the "good cause" called for by CPLR 3212(a) requires a
"satisfactory explanation for the untimeliness – rather than simply
permitting meritorious, nonprejudicial filings, however tardy" (id.
at 652) (see also Miceli v State Farm Mut. Auto. Ins. Co.,
3 NY3d 725 [2004]). This Court has subsequently observed that
"courts may not excuse a late motion, no matter how meritorious, upon a
perfunctory claim of law office failure" (Azcona v Salem, 49 AD3d 343, 343 [2008]).

In this case, however, it is undisputed that defendants made a
timely motion to dismiss on the grounds of collateral estoppel.
Moreover, in defending the "failure" to make a simultaneous motion for
summary judgment, they noted that Fofana, as a third-party defendant in
the Haynes action, had been served with the motion papers.
Regardless of whether he chose to submit papers in opposition to the
motion, he was put on notice that the defendants were taking the
position that the elevator door was not defective prior to the accident,
and that the accident occurred as a result of the force exerted by the
weight of the two combatants as they fell against the door. He thus had
the opportunity to litigate the issue, and yet declined. Furthermore,
since the note of issue had not yet been filed in his own action, Fofana
still had the opportunity to pursue further discovery with regard to
this defense, in the event such a motion was made in his own case.

Thus, defendants' averment that they had good cause not to file a
motion for summary judgment contemporaneously with the motion to
dismiss is valid. The disposition of the Haynes summary judgment
motion provided sufficient grounds either to invoke collateral estoppel
or to dismiss the Fofana case. The conditions for the
applicability of collateral estoppel are an identity of issue which has
been necessarily decided in the prior action and is decisive of the
present action, and a full and fair opportunity to contest the decision
now said to be controlling (Schwartz v Public Admin. of County of
Bronx, 24 NY2d 65, 71 [1969]). The issue of whether the elevator was
defective was at the heart of the Haynes case, and Fofana was a
party to that action. Even as a third-party defendant he had a vested
interest in opposing any contention that the elevator door was not the
cause of the accident. Like the codefendants in Schwartz, he was
in every respect an antagonist to the defendants/third-party plaintiffs
who impleaded him, and who asserted that the elevator door was not
defective (id. at 72).

We therefore conclude that defendants were not guilty of law
office failure in not also moving for summary judgment.

The bold is mine.

NYSBA, CPLR 3212 and CPLR 3116(a)

CPLR R. 3116 Signing
deposition; physical preparation; copies

(a)
Signing. The deposition shall be submitted to the witness for
examination and shall be read to or by him or her, and any changes in
form or substance which the witness desires to make shall be entered at
the end of the deposition with a statement of the reasons given by the
witness for making them. The deposition shall then be signed by the
witness before any officer authorized to administer an oath. If the
witness fails to sign and return the deposition within sixty days, it
may be used as fully as though signed. No changes to the transcript may
be made by the witness more than sixty days after submission to the
witness for examination.

David Horowitz has a great article in New York State Bar Association Journal about the use of unsigned deposition transcripts in summary judgment motions titled "Signature Required." As we all know, summary judgment must be supported by proof in admissible form. And generally, unsigned deposition transcripts are not proof in admissible form. Why? CPLR R. 3116(a), requires that the deposition transcript be signed by the witness. If that isn't done, the transcript may be admissible provided that the transcript was actually provided to the witness for his or her signature within 60 days of receipt. The rule is not without it's exceptions, however. For example, "When a party moving for summary judgment utilizes an unexectuted transcript of its party witness, thereby 'adopting' the contents…and the transcript is then relied on by the party opposing the motion, the transcript may be considered as proof in opposition by the opposing party." (quote is from the article. I have no idea how to cite to it). Another example is when it is used as a party admission. You'll have to read the article to get all the cites. If not for the cites, you should read it, just because.

Oh, ok, just one cite, Pina v. Flik Intern. Corp., 808 N.Y.S.2d 752 (App. Div., 2nd, 2007). There the Appellate DIvision makes it pretty simple. Either it's signed, or you show that you sent it to be signed. Otherwise, you're screwed:

The Supreme Court properly denied the defendants' motions for summary
judgment since they failed to submit sufficient evidence in admissible
form to establish their entitlement to judgment as a matter of law (see
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The
defendants failed to show that the unsigned deposition transcripts of
various witnesses they submitted in support of their motions had
previously been forwarded to the relevant witnesses for their review
pursuant to CPLR 3116 (a). Hence, contrary to the defendants'
contention, they were not admissible (see Lalli v Abe, 234 AD2d
346 [1996]; Palumbo v Innovative Communications Concepts, 175
Misc 2d 156 [1997], affd 234 AD2d 346 [1998]; Connors, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3116:1).

Yes, I know, there are exceptions, but generally, you will be screwed.

Compare Pina with St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (App. Div., 2nd, 2010). In that case the defendant offered several unsigned EUO transcripts as evidence in support of its motion for summary judgment. Defendant offered them under the theory that (1) they weren't being offered for their truth and (2) they were admissions. The Appellate Division found that defendant's cross motion should be have granted, reversing the lower court. The Appellate Term, twice now, has held that assignors are not parties. I read defendant's briefs, but don't quite understand just how defendant thought the transcripts were relevant if not offered for their truth. JT appears equally confused. And the Appellate Division's decision offers zero insight. The whole thing is weird.

So, in conclusion, make sure to read the article. It was the first thing I turned to when I opened the magazine. I'm a nerd. Fat too. God help me.

[edit] Sorry, I forgot to add something. In the very beginning of the article Mr. Horowitz briefly discusses the history of summary judgment, including the initial fight as to whether, and I'm paraphrasing here, it encroached on the right to trial by jury. The issue of whether summary judgment is constitutional, it appears, is not a new argument. If anyone is interested, there is a great Law Review article on that very topic. I posted it back in September with links to the articles.

SLAPP

Most people don't know or care about SLAPP. It's interesting stuff and there is a wealth of information about in on the internets. Along with SLAPP, note that plaintiff, in opposing defendant's summary judgment motion, only attached an attorney affirmation. No affidavit was attached. And note the rare reference to 3212(h).

Novosiadlyi v James, 2010 NY Slip Op 00938 (App. Div., 2nd, 2010)

The plaintiffs commenced this action alleging, inter alia, that the
defendants defamed them during public hearings on their application for a
permit allowing them to use their house in Lindenhurst as an
owner-occupied two-family home. The defendant Joseph Ippolito moved for
summary judgment dismissing the complaint insofar as asserted against
him pursuant to CPLR 3212 and Civil Rights Law §§ 70-a and 76-a, and for
recovery on his counterclaim for an award of an attorney's fee,
contending that this action was an improper strategic lawsuit against
public participation (hereinafter SLAPP action) (see 600 W. 115th St.
Corp. v Von Gutfeld, 80 NY2d 130, 137 n 1, cert denied 508
US 910).

In the order granting Ippolito's motion, the Supreme Court
determined that he established his prima facie entitlement to the
protections of Civil Rights Law §§ 70-a and 76-a. Moreover, the court
rejected the plaintiffs' opposition, which consisted of only an
affirmation of counsel, as being without probative value and
insufficient to oppose the summary judgment motion. Consequently, the
Supreme Court granted Ippolito's motion for summary judgment dismissing
the complaint insofar as asserted against him and awarded him summary
judgment on his counterclaim for an award of an attorney's fee to the
extent of scheduling an inquest.

Thereafter, the plaintiffs, proceeding pro se, moved pursuant to
CPLR 2005 and 2221 for leave to renew their opposition to Ippolito's
motion. In an order dated July 3, 2008, the Supreme Court denied the
plaintiffs' motion for leave to renew, finding that no new facts were
offered and that the new arguments offered as new facts would not have
changed the prior result. The plaintiff Roman Novosiadlyi appeals from
that order. We affirm.
[*2]

A motion for leave to renew must
be (1) based upon new facts not offered on the prior motion that would
change the prior determination, and (2) set forth a reasonable
justification for the failure to present such facts on the prior motion (see
CPLR 2221[e][2], [3]; Caraballo v Kim, 63 AD3d 976, 978; Jackson
Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480). Here, the
plaintiffs failed to submit new facts sufficient to change the court's
prior determination granting Ippolito's summary judgment motion. Civil
Rights Law § 76-a was enacted to provide special protection for
defendants in actions arising from the exercise of their rights of
public petition and participation by deterring SLAPP actions (see 600
W. 115th St. Corp. v Von Gutfeld, 80 NY2d at 137 n 1; Singh v
Sukhram, 56 AD3d 187, 194). Where, as here, the defendant
established that the action involves the rights of public petition and
participation (see Civil Rights Law § 76-a[1][a]), "damages may
only be recovered if the plaintiff, in addition to all other necessary
elements, shall have established by clear and convincing evidence that
any communication which gives rise to the action was made with knowledge
of its falsity or with reckless disregard of whether it was false"
(Civil Rights Law § 76-a[2]; see T.S. Haulers v Kaplan, 295 AD2d
595, 598). In addition, summary judgment must be awarded to the
defendant unless the plaintiff demonstrates, in opposition, that the
action has "a substantial basis in fact and law or is supported by a
substantial argument for an extension, modification or reversal of
existing law" (CPLR 3212[h]). The plaintiffs' submissions in support of
their renewal motion failed to meet this burden or otherwise raise a
triable issue of fact as to whether Ippolito knew that his statements
were false or that he made them with reckless disregard of whether they
were true. Accordingly, the Supreme Court properly denied the
plaintiffs' motion for leave to renew (see T.S. Haulers v Kaplan,
295 AD2d at 598).

The bold is mine.

CPLR R. 3212 Round Up

I've let these sit for too long. These need to be posted, along with the 3211 cases, so that I can get to some of the more esoteric (probably not the right word) sections and rules. Besides, I finally got a new computer, one that doesn't crash. So I might as well put it to use.

CPLR R. 3212 Motion for summary judgment

CPLR R. 3214 Motions
heard by judge supervising disclosure; stay of disclosure

(b) Stay of disclosure: Service of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion unless the court orders otherwise. If the motion is based solely on the defense that the summons and complaint, summons with notice, or notice of petition and petition was not properly served, disclosure shall not be stayed unless the court orders otherwise.

Mazzocchi Wrecking Inc. v East 115th St. Realty Corp., 2010 NY Slip Op 01425 (App. Div., 1st, 2010)

Plaintiff's motion, based solely on the claim for breach of contract, was unsupported by an affidavit of a person with personal knowledge. The movant thus failed to meet its prima facie burden of proof, rendering the motion insufficient and lacking in probative value (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 31-32 [1979], affd 49 NY2d 924 [1980]).

Gonzalez v Nutech Auto Sales, 2010 NY Slip Op 00469 (App. Div., 2nd, 2010)

Under the circumstances of this case, since the motion was premature as no discovery had yet taken place (see CPLR 3212[f]; Harvey v Nealis, 61 AD3d 935; Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753), the Supreme Court erred in determining the motion on the merits.

Sutter v Wakefern Food Corp., 2010 NY Slip Op 00506 (App. Div., 2nd, 2010)

The plaintiff commenced this action against the defendant in 2002. In an amended order dated October 6, 2005, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint. In an order dated August 18, 2006, the Supreme Court denied the defendant's motion for leave to renew, on both a "procedural and substantive basis." In July 2008 the defendant again moved for summary judgment dismissing the complaint. The plaintiff then separately moved for the admission, pro hac vice, of Florida attorney Antoinette R. Appel to appear on her behalf as co-counsel in this action. The Supreme Court granted the defendant's motion and, in effect, denied the plaintiff's motion as academic.

Generally, successive motions for summary judgment should not be entertained, absent a showing of newly-discovered evidence or other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Crane v JAB Realty, LLC, 48 AD3d 504; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599). Here, the Supreme Court should not have [*2]entertained the defendant's latest motion for summary judgment dismissing the complaint since the defendant did not submit any newly-discovered evidence, or present other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Selletti v Liotti, 45 AD3d 669; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599).

Marcantonio v Picozzi, 2010 NY Slip Op 00822 (App. Div., 2nd, 2010)

Accordingly, the Supreme Court properly dismissed the complaint insofar as asserted against Picozzi and the law firm, thus rendering academic that branch of the plaintiffs' cross motion which was to compel those defendants to answer interrogatories. As to the defendants Project Real Estate, Inc., and John McHugh, their response to interrogatories was properly stayed pending determination of their motion for summary judgment (see CPLR 3214[b]).

Williams v D & J School Bus, Inc., 2010 NY Slip Op 00141 (App. Div., 2nd, 2010)

In opposition, the City defendants failed to raise a triable issue of fact as to whether the third-party defendants had any involvement in this matter, merely arguing that their motion was premature, and that a deposition of Scialpi was necessary. 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 Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). A party's mere hope that further discovery will reveal the existence of a triable issue of fact is insufficient to delay determination of the motion (see Wyllie v District Attorney of County of Kings, 2 AD3d at 717; Weltmann v RWP Group, 232 AD2d 550). Here, as the Supreme Court correctly held, the City 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).