CPLR R. 3212 – Page 7

CPLR R. 3212(a) Timing: Piggy-back Motions

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action

CPLR § 2211 Application for order; when motion made

Lennard v Khan, 2010 NY Slip Op 00482 (App. Div., 2nd, 2010)

The plaintiff's independent medical examination occurred on December 4, 2008, thus requiring submission of any summary judgment motions by January 27, 2009, the earliest of the possible deadlines.

By notice of motion dated January 22, 2009, the defendants Fazal Khan and Ace Towing, LLC (hereinafter the respondents), moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The respondents served the plaintiff's counsel with the summary judgment motion on January 23, 2009, and filed the motion with the court on February 11, 2009.

The defendants Keith O. Prescod, Jr., and Desiree Klass separately moved for the same relief. They served the plaintiff's counsel with their motion papers on January 30, 2009, and filed them with the court on March 2, 2009.

***The plaintiff opposed both motions on the ground that they were untimely, but did not address the movants' arguments that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In reply, the respondents argued that their motion was timely under CPLR 2211 because it had been served on the plaintiff's counsel within the time period allotted. In an order dated April 2, 2009, the Supreme Court granted the respondents' motion as timely and since it was unopposed on the merits. The court also denied the separate motion of Prescod and Klass as untimely. These appeals ensued.

"A motion on notice is made when a notice of the motion or an order to show cause is served" (CPLR 2211; see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561). Given that the respondents' motion was served on the plaintiff's counsel by mail on January 23, 2009, four days before the January 27, 2009, deadline, the Supreme Court correctly concluded that the respondents' motion was timely.

Where one party makes a timely summary judgment motion, the court may properly consider an untimely summary judgment motion, provided the late motion is based on "nearly identical" grounds as the timely motion (Perfito v Einhorn, 62 AD3d 846, 847 [internal quotation marks omitted]; see Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 844-845; Ianello v O'Connor, 58 AD3d 684; Grande v Peteroy, 39 AD3d 590, 591-592; Miranda v Devlin, 260 AD2d 451, 452). In effect, the "nearly identical" nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion (Grande v Peteroy, 39 AD3d at 592). "Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party" (see CPLR 3212[b]; Grande v Peteroy, 39 AD3d at 592).

Since the respondents' motion was already properly before the court, it improvidently exercised its discretion in refusing to consider the separate motion of Prescod and Klass, made on identical grounds, on the ground that the separate motion was untimely made (see Joyner-Pack v Sykes, 54 AD3d 727; Grande v Peteroy, 39 AD3d at 591; Miranda v Devlin, 260 AD2d 451). Further, since the plaintiff did not challenge the movants' contentions regarding serious injury, the separate motion should have been granted.

Here, the order required that a summary judgment motion be made by a certain date. Watch out for orders or stipulations that require a motion to be filed by a certain date.

Further food for thought( h/t Damin Toell): Piquette v. City of New York, 4 A.D.3d 402 (App. Div., 2nd, 2004):

Although the municipal defendants' motion to set aside the jury verdict was made on insufficient notice (see CPLR 2214 [b]), the plaintiffs were not prejudiced by this procedural irregularity, and waived their objection to it by opposing the motion on the merits (see Henry v Gutenplan, 197 AD2d 608 [1993]; Adler v Gordon, 243 AD2d 365 [1997]; Matter of Venner, 235 AD2d 805 [1997]; Todd v Gull Contr. Co., 22 AD2d 904 [1964]). Accordingly, the Supreme Court erred in refusing to determine the motion on its merits.

Today in the First Department (22 NYCRR 202.2, CPLR R. 3211, CPLR R. 3212, CPLR § 306-b, CPLR § 3121, SOL)

Several decisions popped out of the Appellate Division, First Department, today. In a break from my normal posting style, where I try to split posts between sections and rules, I'm going to post the few decisions that I found interesting.

Ocasio-Gary v Lawrence Hosp., 2010 NY Slip Op 00003 (App. Div., 1st, 2009)

Even had St. Barnabas met its initial burden, plaintiff's expert's submission raises triable issues of fact regarding the hospital's negligence (see DaRonco v White Plains Hosp. Ctr., 215 AD2d 339 [1995]). The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion. Venue should be retained in Bronx County. The only ground for the motion to change venue was the dismissal of the complaint against St. Barnabas, and the complaint has been reinstated.

The motion to vacate plaintiff's note of issue, served more than 20 days after service of that note, was properly denied as untimely (see 22 NYCRR 202.21[e]), "no showing of special circumstances or adequate reason for the delay having been offered" (Arnold v New York City Hous. Auth., 282 AD2d 378 [2001]). Nor did the court err in finding that defendant Orin failed to demonstrate good cause for an extension of time in which to file his motion for summary judgment (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Johnson v Concourse Vil., Inc., 2010 NY Slip Op 00010 (App. Div., 1st, 2009)

Although plaintiff's counsel served her pleadings just one day after the applicable 120-day service period expired (see CPLR 306-b), and counsel offered proof that he attempted to arrange for service with eight days remaining out of the 120-day period, he nonetheless failed to show diligence in his efforts to effect service, particularly as the three-year statute of limitations (CPLR 214[5]) had already expired, and he did not follow up with the process server regarding completion of service until after the 120-day service period had expired. There was no evidence to indicate that the corporate defendants could not be located, or that they could not be readily served through the Secretary of State. Furthermore, counsel waited until after defendants moved to dismiss before he cross-moved for an extension of the time to serve some several months later. Such evidence of lack of diligence undermines plaintiff's "good cause" argument in support of her extension request (see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).

Nor is a grant of an extension to serve the pleadings warranted in the interest of justice. The circumstances presented, including that the statute of limitations expired, plaintiff's lack of diligence in prosecuting this action, the lack of probative evidence offered as to the claim's merit, the vague allegations of injury, the lack of notice given of the claim for more than three years and three months, the prejudice to defendants and the several month delay in moving for an extension of the time to serve, demonstrate that the dismissal of this action was appropriate (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Posada v Pelaez, 37 AD3d 168 [2007]; compare de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).

One day late.

Suss v New York Media, Inc., 2010 NY Slip Op 00011 (App. Div., 1st, 2009)

We reject plaintiff's argument that such evidence fails to show, prima facie, that the issue first was published on April 29. The affidavits submitted by defendants were made with personal knowledge of the issue's distribution date; the distributor's affidavit was the proper vehicle for the submission of photographs taken by him and his staff (see H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98, 98 [1992]); and the photographs, as enhanced and highlighted in defendants' reply, clearly depict what they are claimed to depict. In opposition, plaintiff failed to submit any evidence of a later publication.

We also reject plaintiff's argument that unless the court gives CPLR 3211(c) notice of its intention to do so, it may not consider nondocumentary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Alverio v New York Eye & [*2]Ear Infirmary, 123 AD2d 568 [1986]; Lim v Choices, Inc., 60 AD3d 739 [2009]).

Welter v Feigenbaum, 2010 NY Slip Op 00012 (App. Div., 1st, 2009)

A plaintiff, in an action for negligent transmittal of genital herpes simplex II, may demand that the defendant submit to a blood test to determine if the latter indeed has the virus (see CPLR 3121). Since the test was ordered in conjunction with the litigation, it is not subject to the physician-patient privilege (see Connors, McKinney's CPLR Practice Commentary C3121:2). Even were the privilege to apply, defendant waived it by asserting the affirmative defense that he was asymptomatic (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287-288 [1989]). Defendant's effort to limit the scope of discovery has simply focused the issue on whether or not he has the virus. This issue is relevant to — and potentially dispositive of — the action. If the test is negative, the case will be subject to dismissal. If, on the other hand, it is positive, defendant will have an opportunity to prove his affirmative defenses that he did not have the virus in 2002, or was unaware that he had it or was asymptomatic at the time of alleged transmittal to plaintiff.

All concur except Andrias and McGuire, JJ., who concur in a separate memorandum by McGuire, J. as follows:

McGUIRE, J. (concurring)

We write separately to emphasize that we express no view on the issue of whether, if the test is positive, it is adm
issible at trial (see People v Scarola, 71 NY2d 769, 777 [1988] ["(e)ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the [*2]exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury"]).

The herpes case.

CPLR R. 3212: It’s all about the timing

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action
(f) Facts unavailable to opposing party

Alexandru v Pappas, 2009 NY Slip Op 08978 (App. Div., 2nd, 2009)

However, to the extent that the plaintiff's motion sought to compel the defendants to specifically perform their obligations under the stipulations of settlement, which is the ultimate relief sought in the action, that branch of the motion was, in effect, for summary judgment, which procedurally could not be granted, as issue had yet to be joined (see CPLR 3212[a]). Thus, that branch of the motion was properly denied.

Joson v G & S Realty 1, LLC, 2009 NY Slip Op 09620 (App. Div., 2nd, 2009)

Generally, unless a trial court specifies otherwise, a party has 120 days after the filing of a note of issue to move for summary judgment, after which it may do so only with "leave of court on good cause shown" (CPLR 3212[a]). This "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" (Brill v City of New York, 2 NY3d 648, 652). A trial court has discretion in determining whether to consider a motion for summary judgment made more than 120 days after the filing of a note of issue (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129). Here, the trial court providently exercised its discretion in denying the motion of the defendant TPD Construction Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it because it failed to timely file its motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d at 652; Gonzalez v 98 Mag Leasing Corp., 95 NY2d at 129).

Fontanez v Lazarus, 2009 NY Slip Op 09373 (App. Div., 1st, 2009)

In a stipulation so-ordered by the court, any motions by defendants for summary judgment were to be "served and filed" by November 21, 2007, and that while appellant served its motion on November 21, it did not file it until November 30. Accordingly, appellant was required, but failed, to show good cause for the late filing (Corchado v City of New York, 64 AD3d 429 [2009]).

Some courts have specific rules as to when motions can be filed. Assume that in this case there was such a rule and because of that rule, the motion could not be filed within the timeline. Whether or not the movant has a reasonable excuse may depend on duration between service and filing of the motion.

North Fork Preserve, Inc. v Kaplan, 2009 NY Slip Op 09006 (App. Div., 2nd, 2009)

After extensive discovery, the defendants moved for summary judgment dismissing the remaining claims in the amended complaint. Although the defendants had made two previous motions for summary judgment, the third motion did not violate the general proscription against successive motions for summary judgment since it was based on deposition testimony and numerous documents that had been elicited after the prior motions were denied (see Auffermann v Distl, 56 AD3d 502; Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., Inc., 32 AD3d 218; Staib v City of New York, 289 AD2d 560).

***

Finally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew their opposition to the defendants' motion for summary judgment, since the alleged new evidence was improperly submitted for the first time in the plaintiffs' reply papers (see GJF Constr. Corp. v Cosmopolitan Decorating Co. Inc., 35 AD3d 535; Adler v Suffolk County Water Auth., 306 AD2d 229). In any event, the plaintiffs did not offer a reasonable justification for their failure to present this evidence on the prior motion (see CPLR 2221[e]; Williams v Nassau County Med. Ctr., 37 AD3d 594).

Compare this decision with Matapos Tech. Ltd. v Compania Andina de Comercio Ltda¹, 2009 NY Slip Op 09713 (App. Div., 1st, 2009) ("In its reply, plaintiff submitted a supplemental affidavit containing endorsements to the notes, which had inadvertently been omitted on the initial moving papers. The court properly considered this submission because defendant had made an issue of the omission in response to the motion (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 [2006]; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630 [1999]). ) and with McMullin v Walker, 2009 NY Slip Op 09438 (App. Div., 2nd, 2009) (The "Final Narrative" medical report of Dr. Jerome L. Greenberg, McMullin's chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296). In an attempt to cure that defect, McMullin submitted Dr. Greenberg's affidavit, along with the "Final Narrative" report, in a surreply entitled, "Supplemental Affirmation in Opposition." This was improper, and the Supreme Court should not have [*2]considered this submission (see Flores v Stankiewicz, 35 AD3d 804)).

Hsing Hsung Chuang v Whitehouse Condominium, 2009 NY Slip Op 09375 (App. Div., 1st, 2009)

To the extent plaintiffs argue that discovery is needed, they failed to demonstrate either that the required evidence is within defendants' exclusive knowledge or that they "at least made some attempt to discover facts at variance with [defendants'] proof" (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [2007]).

The bold is mine.

————————————-

1. The decision also has an important discussion of CPLR § 2309(c)

CPLR R: 3212 Multiple Summary Judgment Motions Allowed in Some Circumstances

CPLR R. 3212

North Fork Preserve, Inc. v Kaplan, 2009 NY Slip Op 09006 (App. Div., 2nd, 2009)

After extensive discovery, the defendants moved for summary judgment dismissing the remaining claims in the amended complaint. Although the defendants had made two previous motions for summary judgment, the third motion did not violate the general proscription against successive motions for summary judgment since it was based on deposition testimony and numerous documents that had been elicited after the prior motions were denied (see Auffermann v Distl, 56 AD3d 502; Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., Inc., 32 AD3d 218; Staib v City of New York, 289 AD2d 560).

***

Finally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew their opposition to the defendants' motion for summary judgment, since the alleged new evidence was improperly submitted for the first time in the plaintiffs' reply papers (see GJF Constr. Corp. v Cosmopolitan Decorating Co. Inc., 35 AD3d 535; Adler v Suffolk County Water Auth., 306 AD2d 229). In any event, the plaintiffs did not offer a reasonable justification for their failure to present this evidence on the prior motion (see CPLR 2221[e]; Williams v Nassau County Med. Ctr., 37 AD3d 594).

Alexandru v Pappas, 2009 NY Slip Op 08978 (App. Div., 2nd, 2009)

However, to the extent that the plaintiff's motion sought to compel the defendants to specifically perform their obligations under the stipulations of settlement, which is the ultimate relief sought in the action, that branch of the motion was, in effect, for summary judgment, which procedurally could not be granted, as issue had yet to be joined (see CPLR 3212[a]). Thus, that branch of the motion was properly denied.

Compare Alexandru with Roche v Claverack Coop. Ins. Co., 2009 NY Slip Op 01390 (App. Div., 3d, 2009) (Treating defendant's SJ motion as if issue had been joined).

What’s New In 3212? It’s (f)

Sometimes in order to oppose a motion for summary judgment, you need information. You need discovery.That's where CPLR R. 3212(f) comes in. It allows you to oppose the motion, by arguing that you cannot oppose without more information and, you can only get that information from the other party. The absence of discovery will not always be sufficient. There are many cases where the non-moving party needs no additional information to oppose the motion. "But we're entitled to discovery," or similar arguments, will not suffice, absent a articulable need. And be wary of invoking (f) where you, the non-moving party, filed a note of issue. CPLR R. 3211 has a similar provision.

On its face, this is simple stuff. But as usual, the devil is in the details. In the past few months I've seen a bunch of these decisions. I might not have noticed it before. It may just be the cool thing to do–in vogue at the moment.

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

Long Is. Power Auth. v Anderson, 2009 NY Slip Op 07989 (App. Div., 2nd, 2009)

Under the circumstances of this case, however, which include the total absence of any pretrial discovery, the plaintiff's motion for summary judgment was premature (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506; Hall Enters., Inc. v Liberty Mgt. & Constr., Ltd., 37 AD3d 658; see also Matter of Niagara Mohawk Power Corp. v Town of Watertown, 6 NY3d 744).

McCoy v Zaman, 2009 NY Slip Op 07990 (App. Div., 2nd, 2009)

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Nieves v JHH Transp., LLC, 40 AD3d 1060; Velazquez v Denton Limo, Inc., 7 AD3d 787, 788; Barberena v Budd Enters., 299 AD2d 305, 306).

In opposition to the prima facie demonstration by the plaintiff of his entitlement to judgment as a matter of law, the defendant failed to proffer sufficient evidence to raise a triable issue of fact (see Nieves v JHH Transp., LLC, 40 AD3d at 1060; Rainford v Sung S. Han, 18 AD3d 638, 639). The defendant's affidavit submitted in opposition to the motion raised only feigned issues of fact intended solely to avoid the consequences of his prior admission (see Nieves v JHH Transp., LLC, 40 AD3d at 1060).

Contrary to the defendant's contention, summary judgment was not premature due to the alleged incompleteness of discovery (see Rivas v 525 Bldg Co., 293 AD2d 733, 735). There was no indication that any outstanding discovery might reveal information exclusively within the plaintiff's knowledge upon which his motion could successfully be opposed (see Household Bank [SB] N.A. v Mitchell, 12 AD3d 568, 568-569; Rivas v 525 Bldg Co., 293 AD2d at 735).

Doe v City of New York, 2009 NY Slip Op 08580 (App. Div., 2nd, 2009)

Furthermore, the Supreme Court properly rejected the plaintiff's contention that facts essential to justify opposition to that branch of the MTA/LIRR's motion may exist upon further discovery (see CPLR 3212 [f]). Accordingly, the Supreme Court properly denied the plaintiff's cross motion to compel discovery. The plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence (see Panasuk v Viola Park Realty, LLC, 41 AD3d 804, 805; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615). Moreover, the plaintiff filed a note of issue, failed to demand additional discovery within 20 days of the depositions as provided in the parties' discovery stipulation, and did not make any application to compel discovery until she cross-moved in opposition to the MTA/LIRR's motion. In such an instance, a claim of incomplete [*3]discovery will not defeat a prima facie showing of entitlement to summary judgment (see Guarino v Mohawk Containers Co., 59 NY2d 753; Matuszak v B.R.K. Brands, Inc., 23 AD3d 628).

Menezes v Khan, 2009 NY Slip Op 07991 (App. Div., 2nd, 2009)

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 did not address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Negassi v Royle, 65 AD3d 1311; Alvarez v Dematas, 65 AD3d 598; Rahman v Sarpaz, 62 AD3d 979, 980; Smith v Quicci, 62 AD3d 858, 859). The plaintiff alleged in his bill of particulars that he missed three months of work as a result of the accident, and the defendants' neurologist and orthopedist were both advised of this allegation. However, neither of these experts, who did not examine the plaintiff until more than three years after the accident, related his findings to the 90/180 day category of serious injury. The affirmed medical reports of the defendants' radiologist also failed to establish that the plaintiff did not sustain a serious injury as a result of the accident. Although the radiologist opined that the plaintiff had not suffered any traumatic injury to his cervical and lumbar spines, her reports did not address any of the other injuries alleged in the plaintiff's bill of particulars, including bilateral shoulder and knee injuries (see Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143; Rahman v Sarpaz, 62 AD3d at 980; Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814, 815; Carr v KMO Transp., Inc., 58 AD3d 783, 784-785; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769, 770). [*2]

Since the defendants did not sustain 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 Takaroff v A.M. USA, Inc., 63 AD3d at 1144; Rahman v Sarpaz, 62 AD3d at 980).

And, make sure to attach all the pleadings..

Fishkin v Feinstein, 2009 NY Slip Op 08782 (App. Div., 2nd, 2009)

The Supreme Court properly denied Feinstein's motion for summary judgment. As an initial matter, the plaintiff correctly contends that Feinstein was not entitled to summary judgment since the papers she submitted in support of her motion failed to include copies of all of the pleadings filed in the action, as required by CPLR 3212(b) (see Wider v Heller, 24 AD3d 433; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663; Deer Park Assoc. v Robbins Store, 243 AD2d 443; Lawlor v County of Nassau,166 AD2d 692).

The bold is mine.

CPLR R. 3212(a)(f) Shennanigans and CPLR § 3213

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action
(b) Supporting proof; grounds; relief to either party
(f) Facts unavailable to opposing party

CPLR § 3213 Motion for summary judgment in lieu of complaint

Abdalla v Mazl Taxi, Inc., 2009 NY Slip Op 07566 (App. Div., 2nd, 2009)

The defendants established good cause in support of that branch of
their motion which was for leave to extend their time to move for
summary judgment until 120 days after receipt of all outstanding
discovery, since there was significant discovery outstanding at the
time the note of issue was filed (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Jones v Grand Opal Constr. Corp., 64 AD3d 543; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724). Therefore, that branch of their motion should have been granted.

Delacruz v Ostrich Cab Corp., 2009 NY Slip Op 07577 (App. Div., 2nd, 2009)

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). During his examination of the plaintiff, the
defendants' orthopedic surgeon found restrictions in the range of
motion of the plaintiff's lumbar spine, which he described as
"self-restricted." However, he failed to explain or substantiate with
any objective medical evidence the basis for his conclusion that the
limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Accordingly, the Supreme Court properly denied the defendants' motion
for summary judgment without considering the sufficiency of the
plaintiff's opposition papers (see Cuevas v Compote Cab Corp., 61 AD3d 812; Coscia v 938 Trading Corp., 283 AD2d 538).

Solomon v Langer, 2009 NY Slip Op 07335 (App. Div., 1st, 2009)

Plaintiff established her entitlement to summary judgment in lieu of
complaint on the promissory note made by defendant by establishing
execution, delivery, demand and failure to pay (see Israel Discount Bank of N.Y. v 500 Fifth Ave. Assoc.,
167 AD2d 203 [1990]). Defendant failed to substantiate, in evidentiary
form, his assertion that payments to plaintiff's mother, an alleged
business acquaintance since deceased, discharged the note. Defendant
sets forth no evidence of misleading conduct on the part of plaintiff
indicating that she gave her mother the authority to transact business
on her behalf (compare Hallock v State of New York, 64 NY2d 224,
231 [1984]). Furthermore, the note unequivocally stated that payment
was to be made directly to plaintiff and the parol evidence rule bars
consideration of defendant's purported oral agreement with plaintiff's
mother regarding payment of the loan (see Manufacturers Hanover Trust Co. v Margolis,
115 AD2d 406 [1985]). Moreover, it is settled that "invocation of
defenses based on facts extrinsic to an instrument for the payment of
money only do not [*2]preclude CPLR 3213 consideration" (Alard, L.L.C. v Weiss, 1 AD3d 131,767 NYS2d 11, 2003 N.Y. Slip Op. 18173).

Davila v New York City Tr. Auth., 2009 NY Slip Op 07792 (App. Div., 2nd, 2009)

The opposition to the motion submitted by Keyspan and the defendant
Liberty Department Store, the only parties who opposed the motion,
failed to raise a triable issue of fact (see CPLR 3212[b]). [*2]Moreover,
contrary to the contention of those defendants, the appellant's motion
was not premature, as they failed to offer an evidentiary basis to
suggest that discovery may lead to relevant evidence and that facts
essential to justify opposition were exclusively within the knowledge
or control of the appellant (see Lopez v WS Distrib., Inc., 34
AD3d 759, 760). "The mere hope or speculation that evidence sufficient
to defeat a motion for summary judgment may be uncovered during the
discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34
AD3d 759). Accordingly, the Supreme Court should have granted the
appellant's motion for summary judgment dismissing the complaint and
all cross claims insofar as asserted against it.

and finally,

Stoian v Reed, 2009 NY Slip Op 07713 (App. Div., 3rd, 2009)

We also reject plaintiffs' assertion that Supreme Court abused its
discretion in failing to grant them additional time with which to
conduct discovery. Although the court had the discretion to permit
further discovery if it found that "facts essential to justify
opposition [to a motion for summary judgment] may exist but cannot then
be stated" (CPLR 3212 [f]; see Clochessy v Gagnon, 58 AD3d
1008, 1010 [2009]), "the nonmoving party must produce some evidence
indicating that further discovery 'will yield material and relevant
evidence'" (Fleischman v Peacock Water Co., Inc., 51 AD3d 1203, 1205 [2008], quoting Zinter Handling, Inc. v Britton, 46 AD3d 998,
1001 [2007] [citation omitted]). "The 'mere hope' that evidence
sufficient to defeat the motion may be uncovered during the discovery
process is not enough" (Mazzaferro v Barterama Corp., 218 AD2d 643, 644 [1995], quoting Jones v Gameray, 153 AD2d 550, 551 [1989]; see Clochessy v Gagnon, 58 AD3d at 1010).

Here, plaintiffs requested an extension to obtain testimony from
three contractors that had worked on the house. However, plaintiffs
fail to provide any specifics as to how these [*3]individuals could provide evidence material and relevant to defendants' alleged active concealment (see Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Further, it is undisputed that plaintiffs provided
defendants with a list of contractors who worked on the house prior to
the 1999 closing; indeed, plaintiff admitted during his deposition that
he spoke with at least two of these individuals regarding repairs to
the house (see Flieschman v Peacock Water Co., Inc., 51 AD3d at 1205; Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Under these circumstances, and given the fact that
plaintiffs provide no reasonable excuse for delaying their request for
additional discovery for over two years following depositions and,
indeed, nearly six years after commencing this action, we find no abuse
of discretion in Supreme Court's decision to deny plaintiffs' request (see Dalaba v City of Schenectady, 61 AD3d 1151, 1153 [2009]).

No-fault Defender talks about the case too.

CPLR R. 3212 generally

CPLR R. 3212 Motion for summary judgment

Pellegrini v Brock, 2009 NY Slip Op 06721 (App. Div., 1st, 2009)

"On a motion for summary judgment, the court should accept as true the evidence submitted by the opposing party" (O'Sullivan v Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Ctr.,
217 AD2d 98, 101 [1995]). Here, defendant-respondent submitted evidence
in admissible form which raised a triable issue of fact as to whether
the money at issue was a gift or a loan, including, inter alia, an
affidavit from a non-party who said that plaintiff Roberta Pellegrini
had told her that plaintiffs had given defendants money to buy a house.

The bold is mine.

Is CPLR R. 3212 Constitutional?

Why Summary Judgment is Unconstitutional, Virginia Law Review, Vol. 93, p. 139, 2007, Suja A. Thomas. I found this over at Crime & Federalism (specific post). So what if I'm a couple of years behind.

Thomas argues that Summary Judgment violates the Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Anyway, some people took issue with the article, and the author replied with Why Summary Judgment is Still Unconstitutional.

What about in New York? Is CPLR R. 3212 Unconstitutional? Funny you should ask; I was just looking that up. Article 1, Section 2 of New York's Constitution, governs trials by jury:

Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver.

Not quite the same thing as the U.S. Constitution.

The New York Court of Appeals tackled this issue long ago in General Inv. Co. v. Interborough Rapid Transit Co., 235 N.Y. 133 (1923)("In the
instant case we conclude that the constitutional rights of defendant
are not infringed by the rule; that the justice at Special Term
properly held that no issue for submission to a jury was shown to exist
between the parties.") Of course, CPLR R. 3212 wasn't in play at the time.

Lets look at that quote again:

In the
instant case we conclude that the constitutional rights of defendant
are not infringed by the rule; that the justice at Special Term
properly held that no issue for submission to a jury was shown to exist
between the parties

What if the Court screwed it up?

CPLR R. 3211(a)(5) Converted to CPLR R. 3212

CPLR R. 3211(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

CPLR R. 3212 Motion for summary judgment

Hopper v McCollum, 2009 NY Slip Op 06315 (App. Div., 2nd, 2009)

[T]he defendant interposed a verified answer. In June 2008 the
defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on
the ground that the plaintiffs had received payment through their
homeowners' insurance policy and were not entitled to any additional
recovery from her. The Supreme Court, in effect, converted the motion
to dismiss into one for summary judgment dismissing the complaint and
granted the motion. We modify.

The Supreme Court properly, in effect, converted the motion to
dismiss to one for summary judgment since it was made after issue had
been joined (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Schultz v Estate of Sloan, 20 AD3d 520; Tufail v Hionas, 156
AD2d 670, 671), and the parties clearly charted a summary judgment
course by laying bare their proof and submitting documentary evidence
and evidentiary affidavits (see Myers v BMR Bldg. Inspections, Inc., 29 AD3d 546; Jamison v Jamison, 18 AD3d 710, 711). However, upon such conversion, the Supreme Court [*2]erred
in granting the defendant's converted motion for summary judgment
dismissing the complaint. Contrary to the defendant's contention, the
plaintiffs are not precluded from maintaining this action against the
defendant simply because they received payment from their insurance
carrier (see generally Fisher v Qualico Contr. Corp., 98 NY2d 534, 538; Spectra Audio Research, Inc. v Chon, 62 AD3d 561; Corsa v Pacific Indem. Co., 52 AD3d 450, 451; Winkelmann v Hockins, 204
AD2d 623, 623-624). If the trier of facts in this matter finds the
defendant liable and awards damages to the plaintiffs, then the
plaintiffs' receipt of the insurance payment may be relevant as a
possible setoff against the damages award (see CPLR 4545[c]; Fisher v Qualico Contr. Corp., 98 NY2d at 539-540).

While the Court notes that because issue was joined–among other things–conversion was appropriate, that is not always the case. Consider Roche v Claverack Coop. Ins. Co., 2009 NY Slip Op 01390 (App. Div., 3d, 2009). There the Third Department allowed for a pre-answer summary judgment motion because the parties charted their course and it "treated defendants' summary
judgment motion as if issue had indeed been joined." (I took out the internal quotes).

Lately I've seen a lot of 3211 motions under subdivisions that are inapplicable. More often than not, they are 3212 motions being masked behind 3211.

CPLR R. 3212(f) facts within the exclusive control of the moving party

CPLR R. 3212 Motion for summary judgment

(f) Facts unavailable to opposing party

Desena v City of New York, 2009 NY Slip Op 06160 (App. Div., 2nd, 2009)

Keyspan established its prima facia entitlement to judgment as a
matter of law by submitting evidence that it did not create the alleged
roadway defect that caused the plaintiff's injuries (see Alvarez v Prospect Hosp., 68
NY2d 320, 324). The plaintiff, however, established that facts
essential to resolution of this case exist, but are within the
exclusive control of Keyspan. Pursuant to CPLR 3212(f), a trial court
has the discretion to deny a motion for summary judgment or order a
continuance to allow disclosure if "facts essential to justify
opposition may exist, but cannot then be stated." There must be a
likelihood of discovery leading to such evidence (see Mazzaferro v Barterama Corp., 218
AD2d 643), and the party opposing the motion for summary judgment must
allege the existence of proof in admissible form which presents a
triable issue of fact or an acceptable excuse for the absence of
first-hand knowledge (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023).

In opposition to the motion for summary judgment, the plaintiff submitted the [*2]affirmation
of his attorney alleging that the Keyspan foreman, who was present at
the Keyspan work site on the date work was performed and completed and
who, to date, has not yet been deposed, will provide facts that will
raise a triable issue of fact and are essential to the plaintiff's
ability to defend against this motion for summary judgment. To the
extent that Keyspan's motion for summary judgment is based entirely
upon evidence which refers to work which was planned or permitted to be
performed at the work site, and not upon evidence showing what work was
actually performed, the deposition of the Keyspan foreman, who was
actually present, is necessary to resolve this factual dispute.

The bold is mine.