Category: CPLR R. 3212

Conclusory Expert Affidavit Just Won’t Do it

CPLR R. 3212 Motion for summary judgment

Ghany v Hossain, 2009 NY Slip Op 06116 (App. Div., 2nd, 2009)

On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York,
49 NY2d 557). Here, the defendants satisfied their burden and, in
opposition, the plaintiff failed to raise a triable issue of fact (see Grob v Kings Realty Assoc., 4 AD3d 394,
395). In opposition to the motion, the plaintiff submitted, inter alia,
the affidavit of an expert witness, who opined, in pertinent part, that
the condition of the subject stairs and the upper portion of the
handrail were substantial factors in causing the decedent's injuries.
Even if the stairway and handrail were defective, as the expert opined,
the Supreme Court properly determined that his conclusion linking the
alleged defects to the decedent's fall was purely speculative (see Grob v Kings Realty Assoc., 4 AD3d at 395). Accordingly, the Supreme Court properly awarded the [*2]defendants summary judgment dismissing the complaint.

Ismail v Tejeda, 2009 NY Slip Op 06118 (App. Div., 2nd, 2009).

The defendants did not meet their prima facie burden of establishing
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, 352; Gaddy v Eyler,
79 NY2d 955). The plaintiff clearly alleged in his bill of particulars
that he had sustained, inter alia, a medically-determined injury or
impairment of a nonpermanent nature which prevented him from performing
substantially all of the material acts constituting his usual and
customary activities for not less than 90 days during the 180 days
immediately following the accident. However, the affirmed report of the
defendants' examining physician did not specifically relate any of his
findings to the 90/180 day category of serious injury for the relevant
time period following the accident, and the defendants did not submit
any other evidence to refute the plaintiff's claim (see Neuburger v [*2]Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815; Scinto v Hoyte, 57 AD3d 646).
Since the defendants failed to meet their prima facie burden with
respect to the 90/180 day category of a serious injury, it is
unnecessary to examine the sufficiency of the plaintiff's opposition
papers in this regard (see Neuburger v Sidoruk, 60 AD3d at 652; Miller v Bah, 58 AD3d at 816; Scinto v Hoyte, 57 AD3d at 647).

Far too often, counsel and judges alike ignore this important concept: An expert's affidavit (or affirmation), even if unrebutted, if conclusory or insufficient, will not carry the party offering the affidavit.

The bold is mine.

CPLR R. 3212(a)(f) — an Unusual Reasonable Excuse & Judicial Estoppel

CPLR R. 3212
(a) Time; kind of action [120-day rule]
(f) Facts unavailable to opposing party

Madison Third Bldg. Cos., LLC v Berkey, 2009 NY Slip Op 05686 (App. Div., 1st, 2009)

Inasmuch as defendants' attorney reasonably interpreted a court
attorney's oral directive at a post-note of issue conference that
summary judgment motions "be made in accordance with the CPLR," to mean
that the time to make a summary judgment motion had been extended from
the 45 day deadline set in two pre-note of issue conference orders to
the 120-day outer limit permitted by CPLR 3212(a), such excuse was
reasonable under the
circumstances and the motion should have been considered on its merits.

I put the whole thing in bold.

Tedesco v Tedesco, 2009 NY Slip Op 05767 (App. Div., 2nd, 2009)

The appellant Riccardo Tedesco, Sr., is a plaintiff in Action Nos. 1
and 3, and a defendant in Action No. 2. The three actions, which were
joined for trial, concern a dispute between Tedesco, Sr., and two of
his children concerning the ownership of certain real property. We
agree with the Supreme Court that Tedesco, Sr., cannot now be heard to
claim ownership of the properties in question, having denied ownership
of any real property in prior judicial proceedings that took place
after the alleged real estate transactions at issue here. The doctrine
of judicial estoppel [*2]precludes a
party from taking a position in one legal proceeding which is contrary
to that which he or she took in a prior proceeding, simply because his
or her interests have changed (see Festinger v Edrich, 32 AD3d 412).
The doctrine will be applied where the party has secured a judgment in
his or her favor by adopting a certain position in the prior proceeding
(see Matter of One Beacon Ins. Co. v Espinoza, 37 AD3d 607; Matter of State Farm Mut. Auto. Ins. Co. v Allston, 300 AD2d 669).

Moreover, the issue of judicial estoppel was previously decided
on the merits by the Supreme Court in an order dated December 7, 2006 (see Tedesco v Tedesco, 13 Misc 3d 1245[A]).
Tedesco, Sr.'s appeal from that order was dismissed for failure to
perfect. The dismissal of that appeal constituted an adjudication on
the merits with respect to all issues which could have been reviewed
therein (see Tri-State Sol-Aire Corporation v Martin Assoc., Inc., 7 AD3d 514). The court's finding of judicial estoppel is therefore law of the case (see Brownrigg v New York City House. Auth., 29 AD3d 721).

Tedesco, Sr.'s contention that the motion for summary judgment
was premature is without merit. He failed to offer any evidentiary
basis to suggest that discovery may lead to relevant evidence. His hope
and speculation that evidence sufficient to defeat the motion might be
uncovered during discovery was an insufficient basis to deny the motion
(see Brewster v Five Towns Health Care Realty Corp., 59 AD3d 483; Conte v Frelen Assoc., LLC, 51 AD3d 620).

..

Judicial Notice in a Quirky Case & CPLR R. 3212 & A Twist at the End.

Williams v Naylor, 2009 NY Slip Op 05770 (App. Div., 2nd, 2009)

The plaintiffs raise legal arguments which appear on the face of the
record and could not have been avoided had they been brought to the
attention of the Supreme Court. Accordingly, the grounds for reversal
urged by the plaintiffs may be considered by this Court even though
they have been raised for the first time on appeal (see Matter of 200 Cent. Ave., LLC v Board of Assessors, 56 AD3d 679, 680; Buywise Holding, LLC v Harris, 31 AD3d 681, 682; Matter of State Farm Mut. Auto. Ins. Co. v Olsen, 22 AD3d 673, 674; Beepat v James, 303 AD2d 345, 346; Weiner v MKVII-Westchester, 292 AD2d 597, 598; Block v Magee, 146 AD2d 730, 732; 11 Carmody-Wait 2d § 72:133, at 347-348).

The Supreme Court improperly granted the oral application of the
defendant Emeka Okeke, which was, in effect, for summary judgment
dismissing the complaint insofar as asserted against him. The oral
application was not supported by any motion papers, no formal motion
was made on notice to the plaintiff, and the application was made after
jury selection had been completed and more than 120 days after the note
of issue had been filed, without any showing of good cause (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648; Giannattasio v Han Suk Kang, 30 AD3d 375; Long v Children's Vil., Inc., 24 AD3d 518; Minucci v City of New York, 303 AD2d 473; Hilton [*2]v City of New Rochelle, 298 AD2d 360; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365, 366; Martin Iron & Constr. Co. v Grace Indus., 285 AD2d 494, 495).

In light of our discretion to "take judicial notice of a record" in "the pending matter" (Chateau Rive Corp. v Enclave Dev. Assoc., 22 AD3d 445,
446), we take judicial notice of the proceedings held on November 1,
2007, in this action. Under the circumstances of this case, upon
remittitur to the Supreme Court, Queens County, all further proceedings
in this action shall be conducted before another Justice (see Ling Fei Sun v City of New York, 55 AD3d 795, 796; Doe v Department of Educ. of City of N.Y., 54 AD3d 352, 354).

In light of our determination, the parties' remaining contentions need not be addressed.

DILLON, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.


2008-03467 DECISION & ORDER ON MOTION

Kamil Williams, etc., et al., appellants, v Margaret

Naylor, etc., et al., respondents.

(Index No. 25862/04)

Motion by the respondent on an appeal from a judgment of the
Supreme Court, Queens County, entered March 3, 2008, to strike stated
portions of the appellants' appendix and brief on the ground that the
appendix contains matter dehors the record, and that the brief refers
to matter dehors the record. By decision and order on motion of this
Court dated February 18, 2009, the motion was held in abeyance and
referred to the panel of Justices hearing the appeal for determination
upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers
filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is denied.

DILLON, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.

The bold is mine.

Wow, just Wow.  Look at the last sentence in the last bolded paragraph.

CPLR R. 3212 When and Why

CPLR R. 3212

Light v Light, 2009 NY Slip Op 05847 (App. Div., 2nd, 2009)

A motion for summary judgment may be made after issue has been
joined based on CPLR 3211(a) grounds which have been asserted in the
answer (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Mann v Malasky, 41 AD3d 1136).
Accordingly, the appellant could move for summary judgment dismissing
the complaint insofar as asserted against her after she served her
answer, based upon the affirmative defense of failure to state a cause
of action (see CPLR 3211[a][7]; CPLR 3211[e]). Contrary to the
plaintiff's contention, the doctrine of the law of the case does not
apply, as the Supreme Court did not determine, on the merits, whether
the complaint stated valid causes of action on the previous motion
pursuant to CPLR 3211(a)(1) (see Kopsidas v Krokos, 18 AD3d 822; Gay v Farella, 5 AD3d 540).

…

The Supreme Court improvidently exercised its discretion in
granting that branch of the plaintiff's motion which was to preclude
certain testimony and evidence (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997; Assael v Metropolitan Tr. Auth., 4 AD3d 443), as the plaintiff failed to demonstrate that she was entitled to the drastic remedy of preclusion (see Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 24 AD3d 742).

The Supreme Court providently exercised its discretion in
denying that branch of the appellant's cross motion which was to
disqualify the plaintiff's attorney, as the appellant failed to
establish that the attorney's testimony was necessary (see Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999, 1000; Bentvena v Edelman, 47 AD3d 651).

I don't know why, but I think this decision will wind up being cited more than most of the other 3212 decisions.

The bold is mine.

CPLR R. 3212; Watch your Stip (2nd to last decision)

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

Baines v G&D Ventures, Inc., 2009 NY Slip Op 05735 (App. Div., 2nd, 2009)

A defendant may be held liable for a slip-and-fall incident
involving snow and ice on its property upon a showing that, among other
things, the defendant had actual or constructive notice of the
allegedly dangerous condition (see Taylor v Rochdale Vil., Inc., 60 AD3d 930; Raju v Cortlandt Town Ctr., 38 AD3d 874).
Thus, "[o]n a motion for summary judgment to dismiss the complaint
based upon lack of notice, the defendant is required to make a prima
facie showing affirmatively establishing the absence of notice as a
matter of law" (Goldman v Waldbaum, Inc., 248 [*2]AD2d 436, 437). This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case, as the defendant did here (see Totten v Cumberland Farms, Inc., 57 AD3d 653; South v K-Mart Corp., 24 AD3d 748).
In support of its motion, the defendant submitted the deposition
testimony of its president, who allegedly inspected the premises on an
"almost" daily basis. However, the defendant's president failed to
provide any testimony as to when he last inspected the subject sidewalk
prior to the accident or what it looked like when he last inspected it.
Further, the mere fact that the icy condition which allegedly caused
the plaintiff to fall was open and obvious does not preclude a finding
of liability, but rather raises an issue of fact regarding comparative
negligence (see Sewitch v Lafrese, 41 AD3d 695; Ettari v 30 Rampasture Owners, Inc., 15 AD3d 611).

Accordingly, the defendant failed to meet its initial burden as
the movant, and the Supreme Court should have denied its motion for
summary judgment dismissing the complaint insofar as asserted against
it. Since the defendant did not meet its initial burden, we need not
review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Financial Freedom Senior Funding Corp. v Rose, 2009 NY Slip Op 05745 (App. Div., 2nd, 2009)

There was no need to join the estate of the now-deceased mortgagor,
the father of the respondents Steven Rose and Debra Rosenberg, as it
appears that he died intestate and the complaint does not seek a
deficiency judgment (see Countrywide Home Loans, Inc. v Keys, 27 AD3d 247; Winter v Kram, 3 AD2d 175).

However, the Supreme Court properly denied summary judgment to
the plaintiff, although the motion should have been denied without
prejudice to renewal upon completion of discovery. The respondents
alleged that the now-deceased mortgagor was incompetent when he
executed the subject loan, and that the plaintiff knew or should have
known of the incompetence, which, if both facts are proven, would
constitute a basis to void this transaction (see Ortelere v Teachers' Retirement Bd., 25 NY2d 196; Matter of Loretta I., 34 AD3d 480; see generally Peterson v Spartan Ind., 33 NY2d 463, 465-466; Matter of People v Jaguar Sales, LLC, 61 AD3d 872; Benfeld v Fleming Props, LLC, 38 AD3d 814; Ying Jun Chen v Lei Shi, 19 AD3d 407).
Since the respondent Steven Rose set out a sufficient basis for his
inability to include medical evidence as to the decedent's mental
capacity in his opposition papers, further discovery was warranted.

Woods v 126 Riverside Dr. Corp., 2009 NY Slip Op 05634 (App. Div., 1st, 2009)

Insofar as plaintiffs claim that the motion was premature, they failed
to show that facts essential to the motion were in defendants'
exclusive knowledge or that discovery might lead to facts relevant to
the issues (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557
[2007]). Since plaintiffs were relying on statements they claim were
made to them by defendants' representatives, such facts were not within
defendants' exclusive knowledge.

Corchado v City of New York, 2009 NY Slip Op 05642 (App. Div., 1st, 2009)

The parties' so-ordered stipulation clearly provided that summary
judgment motions were "to be filed" within 60 days of the filing of the
note of issue. Since the note of issue was filed on October 24, 2007,
summary judgment motions were to be filed by December 23, 2007. While
Hallen served its motion on December 21, 2007, it did not file the
motion until January 4, 2008. Plaintiff's opposition asserted the
untimeliness of Hallen's motion, to which Hallen replied that its
motion was timely because served within 90 days of the filing of the
note of issue. We reject Hallen's argument that CPLR 3212(a) authorizes
a court to set a deadline only for the making, i.e., service, not the
filing, of summary judgment motions (see e.g. Corbi v Avenue Woodward Corp.,
260 AD2d 255, 255 [1999]) because the parties, with the court's
consent, were free to chart a procedural course that deviated from the
path established by the CPLR (see Katz v Robinson Silverman Pearce Aronsohn & Berman LLP,
277 AD2d 70, 73 [2000] ["Parties are afforded great latitude in
charting their procedural course through the courts, by stipulation or
otherwise"] [internal citations omitted]). Thus, we affirm the denial
of Hallen's motion as untimely since Hallen offered no excuse for the
late filing (see Brill v City of New York, 2 NY3d 648, 652 [2004]), and we decline to consider Hallen's contention that good cause exists to [*2]consider
the motion because the parties misread the so-ordered stipulation and
believed that the 60-day deadline applied to the serving, not the
filing, of summary judgment motions. That contention was raised
improperly for the first time on appeal. In view of the foregoing, we
decline to reach the merits of Hallen's motion.

Not something you see very often. 

Braudy v Best Buy Co., Inc., 2009 NY Slip Op 05499 (App. Div., 2nd, 2009)

"To meet its initial burden on the issue of lack of constructive
notice, the defendant must offer some evidence as to when the area in
question was last cleaned or inspected relative to the time when the
plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598,
598-599). Since the defendant failed to do so here, the Supreme Court
correctly denied the defendant's motion without regard to the
sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

The bold is mine.

CPLR R. 3211 motion to dismiss not properly converted to 3212 Motion b/c not on notice

CPLR R. 3211 Motion to dismiss

(c)
Evidence permitted; immediate trial; motion treated as one for summary
judgment. Upon the hearing of a motion made under subdivision (a) or
(b), either party may submit any evidence that could properly be
considered on a motion for summary judgment. Whether or not issue has
been joined, the court, after adequate notice to the parties, may treat
the motion as a motion for summary judgment. The court may, when
appropriate for the expeditious disposition of the controversy, order
immediate trial of the issues raised on the motion.

CPLR R. 3212 Motion for summary judgment

Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care, PLLC, 2009 NY Slip Op 04400 (App. Div., 2nd, 2009)

The Supreme Court erred in converting the motion of the defendant
Vasiliki Kadianakis, D.O., a/k/a Kiki Kadianakis, D.O., pursuant to
CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against
her into one for summary judgment without providing notice to the
parties as set forth in CPLR 3211(c) (see Rovello v Orofino Realty Co., 40 NY2d 633; Bowes v Healy, 40 AD3d 566; Moutafis v Osborne, 18 AD3d 723). None of the recognized exceptions to the notice requirement is applicable here (see Mihlovan v Grozavu, 72 NY2d 506, 508; Bowes v Healy, 40 AD3d at 566; Moutafis v Osborne, 18 AD3d at 723; Shabtai v City of New York, 308 AD2d 532, 533). Thus, this Court will apply the standards applicable to a motion to dismiss pursuant to CPLR 3211.
[*2]

Accepting the facts as alleged
in the complaint as true, and according the plaintiff the benefit of
every possible favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint fails to state a cause of action against the defendant Kadianakis (see
CPLR 3211[a][7]). The complaint fails to set forth any allegations
which, if true, would justify piercing the corporate veil and holding
Kadianakis personally liable in her individual capacity (see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141; Millennium Constr., LLC v Loupolover, 44 AD3d 1016, 1016; Matter of Goldman v Chapman, 44 AD3d 938, 939; Levin v Isayeu, 27 AD3d 425; Hyland Meat Co. v Tsagarakis, 202 AD2d 552, 552; cf. Pellarin v Moon Bay Dev. Corp., 29 AD3d 553).

Matter of Town of Geneva v City of Geneva, 2009 NY Slip Op 04483(App. Div., 4th, 2009)

Although respondents/defendants (respondents) moved to dismiss this
hybrid CPLR article 78 proceeding and plenary action against them under
various paragraphs of CPLR 3211 (a) and under CPLR 7804 (f), Supreme
Court in its decision nevertheless addressed the burdens of
petitioner/plaintiff (petitioner) and granted respondents' motion to
dismiss based on the evidence submitted by respondents in support of
their motion. We agree with petitioner that the court erred in
converting respondents' motion to dismiss to one for summary judgment.
The court did not provide "adequate notice to the parties" that it was
doing so (CPLR 3211 [c]), nor did respondents and petitioner otherwise
receive " adequate notice' by expressly seeking summary judgment or
submitting facts and arguments clearly indicating that they were
deliberately charting a summary judgment course' " (Mihlovan v Grozavu, 72 NY2d 506, 508; see Carcone v D'Angelo Ins. Agency, 302 AD2d 963; Pitts v City of Buffalo, 298 AD2d 1003, 1004-
1005).

The bold is mine.

Weird Summary Judgment Issue

CPLR R. 3212

[Fee Fy] Fofana v 41 W. 34th St., LLC, 2009 NY Slip Op 03928 (App. Div., 1st, 2009)

Summary judgment can only be awarded on an unpleaded claim if the proof
supports such a claim and the opposing party has not been prejudiced (Kramer v Danalis, 49 AD3d 263 [*2][2008]).
Here, Midboro was not yet a party to this action when the motion was
made. Consolidation did not occur until four months after Newmark
sought summary judgment for indemnification.

The bold is mine.  The bracketed stuff is mine as well.

CPLR R. 3212 Timing, Conversion, and Other Things

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

EDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp. Ctr., 2009 NY Slip Op 04372 (App. Div., 2nd, 2009)

Although this was the second time that the defendant moved for
summary judgment, and although there is a "general proscription against
successive summary judgment motions" (Auffermann v Distl, 56 AD3d 502,
502), under the circumstances, the Supreme Court properly addressed the
merits of the defendant's second motion for summary judgment, as the
defendant averred that the motion was supported by newly-discovered
evidence (see Oppenheim v Village of Great Neck Plaza, 46 AD3d 527, 528; Staib v City of New York, 289 AD2d 560, 561).

Nevertheless, the Supreme Court properly denied the defendant's
second motion for summary judgment dismissing the amended complaint, or
in the alternative, to renew its prior motion for summary judgment
dismissing the amended complaint, except the court erred in denying [*2]that
branch of the defendant's second motion which was for summary judgment
dismissing the sixth cause of action. On a prior appeal, upon reviewing
the denial of the defendant's first motion for summary judgment
dismissing the amended complaint, this Court found that, while the
defendant established its prima facie entitlement to summary judgment
by tendering evidence that the alleged oral agreement failed to comply
with the provisions of General Obligations Law § 5-701(a)(1), the
plaintiff submitted "evidence of partial performance in reliance upon,
and unequivocally referable to, the oral agreement," sufficient to
raise a triable issue of fact (EDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp. Ctr., 13 AD3d 476).
Since the defendant's subsequent motion for summary judgment, except as
to the sixth cause of action, was essentially based on the same
arguments and facts it raised on its prior motion, this Court's prior
determination constitutes the law of the case on those issues (see J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809, 809; Quinn v Hillside Dev. Corp., 21 AD3d 406, 407). The evidence which was obtained after the defendant's first motion for summary judgment (cf. Staib v City of New York, 289
AD2d 560, 561) included new evidence further establishing, prima facie,
the defendant's entitlement to summary judgment dismissing the sixth
cause of action which was for specific performance. In opposition, the
plaintiff failed to raise a triable issue of fact.

Tolpygina v Teper, 2009 NY Slip Op 04413 (App. Div., 2nd, 2009)

The Supreme Court correctly determined that the causes of action
which were the subject of that branch of the appellants' motion which
was to dismiss pursuant to CPLR 3211(a)(5), or, in the [*2]alternative,
for summary judgment, had been the subject of a previous cross motion
for identical relief. While the cross motion was made before issue was
joined (seeCity of Rochester v Chiarella, 65 NY2d 92, 101; Enriquez v Home Lawn Care & Landscaping, Inc., 49 AD3d 496, 497; Coolidge Equities Ltd. v Falls Ct. Props. Co., 45 AD3d 1289), the plaintiff was clearly placed on notice that the cross motion sought relief pursuant to CPLR 3212 (see Mancuso v Rubin,
52 AD3d 580, 582). The affidavit of the defendant Steven Boym in
support of the cross motion clearly referred to the cross motion as one
seeking relief pursuant to CPLR 3212. The plaintiff submitted papers in
opposition to the cross motion. The Supreme Court, in denying the cross
motion, referred to it as a cross motion for summary judgment. Under
these circumstances, the parties deliberately charted a summary
judgment course CPLR 3212[a]; (id.; see Feitner v Town of Smithtown, 23
AD3d 431, 432). As the appellants had previously cross-moved seeking
relief pursuant to CPLR 3212, contrary to their contention, that branch
of their motion which was for summary judgment dismissing the stated
causes of action insofar as asserted against them "violated the general
proscription against successive summary judgment motions absent a
showing of newly discovered evidence or other sufficient cause'" (Lapadula v Sang Shing Kwok, 304 AD2d 798, 798, quoting Marine Midland Bank v Fisher, 85 AD2d 905, 906; see Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599). No sufficient showing of newly-discovered evidence or other sufficient cause was made here.

The Supreme Court also correctly denied that branch of the
appellants' motion which was to dismiss the stated causes of action
pursuant to CPLR 3211(a)(7) (see Nonnon v City of New York, 9 NY3d 825; Leon v Martinez, 84 NY2d 83; Enriquez v Home Lawn Care & Landscaping, Inc., 49 AD3d at 497; cf. Mancuso v Rubin, 52 AD3d at 583).

Huerta v Longo, 2009 NY Slip Op 04384 (App. Div., 2nd, 2009)

The defendants demonstrated good cause for their delay in making a
motion for summary judgment, and the Supreme Court providently
exercised its discretion in entertaining the [*2]late motion (see CPLR 3212[a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727; Brill v City of New York, 2 NY3d 648, 562; Kunz v Gleeson, 9 AD3d 480,
481). On the merits, the defendants met their prima facie burden of
showing that the plaintiff Jose O. Huerta 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). Huerta's opposition, consisting solely of an
affirmation of his attorney, was insufficient to raise a triable issue
of fact (see Jefferson v Village of Ossining, 18 AD3d 502, 503).

Coello v Christakos, 2009 NY Slip Op 51033(U) (App. Div., 2nd, 2009)

Upon the record presented, we find that defendants established the
requisite "good cause" for their delay in making their motion (see CPLR 3212 [a]; Ramos v Triboro Coach Corp., 31 AD3d 625 [2006]; Andaloro v Hidden Ponds Dev. Corp., 273 AD2d 185 [2000]; Aurora v Ford [*2]Motor Credit Corp.,
266 AD2d 418 [1999]). We also note that plaintiff failed to demonstrate
any prejudice arising from the delay. Consequently, it was an
improvident exercise of discretion for the Civil Court to deny
defendant's motion as untimely. Accordingly, the Civil Court's order is
reversed and the matter is remitted to the Civil Court for a
determination de novo of defendants' motion for summary judgment.

Note that this case went from the Civil Court to the Appellate Division.  It was 325(d)'d from Supreme.

Coldwell Banker Real Estate Servs., Inc. v 529 Atl., LLC, 2009 NY Slip Op 04019 (App. Div., 2nd, 2009)

The plaintiffs established their prima facie entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York,
49 NY2d 557, 562), and the defendant failed to raise a triable issue of
fact. Further, the defendant failed to make an evidentiary showing that
further discovery might provide information that was material and
relevant in opposition to the motion for summary judgment (see LKE Family Ltd. Partnership v Gillen Living Trust, 59 AD3d 602; Board of Mgrs. of Park Regent Condominium v Park Regent Unit Owners Assoc., 58 AD3d 589; Phelan v Huntington Tri-Vil. Little League, Inc., 57 AD3d 503,
505). The Supreme Court therefore properly granted the plaintiff's
motion for summary judgment on the complaint insofar as asserted
against the defendant.

Perfito v Einhorn, 2009 NY Slip Op 04038 (App. Div., 2nd, 2009)

Although the defendants' cross motion for summary judgment was not
timely since it was filed almost two months after the deadline that the
Supreme Court set in its trial readiness order, "an untimely motion or
cross motion for summary judgment may be considered by the court where,
as here, a timely motion for summary judgment was made on nearly
identical grounds" (Grande v Peteroy, 39 AD3d 590,
591-592). "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" (id. at 592).

Premier Real Estate Co., LLC v Sherwood, 2009 NY Slip Op 04041 (App. Div., 2nd, 2009)

The Supreme Court did not err in denying the plaintiff's cross motion
for summary judgment without prejudice to renewal after the completion
of discovery. While it is not disputed that the plaintiff made out a
prima facie case, it is also clear that there was no reasonable
opportunity for discovery in this action, since this motion was made
almost immediately after joinder of issue and the defendant raised
issues warranting further discovery (see Aurora Loan Serv., LLC v LaMattina & Assoc. Inc., 59 AD3d 578; Gera v All Pro Athletics, Inc., 57 AD3d 726; cf. Trombetta v Cathone, 59 AD3d 526).

Slemish Corp., S.A. v Morgenthau, 2009 NY Slip Op 04285 (App. Div., 1st, 2009)

In any event, at this pre-discovery juncture in a case where plaintiffs appear to have exclusive
possession of many of the relevant facts, summary judgment is not appropriate (see CPLR 3212[f])

The bold is mine.

CPLR R. 3212

Robinson v Yeager, 2009 NY Slip Op 03710 (App. Div., 2nd, 2009)

The defendant failed to meet his 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). In support of his motion, the defendant relied
upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell and
Dr. Rene Elkin. In those reports, Dr. Elkin noted significant
limitation in the plaintiff's cervical spine, and Dr. Purcell noted
significant limitation in the plaintiff's right shoulder (see Giacomaro v Wilson, 58 AD3d 802; Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472).
Since the defendant failed to meet his prima facie burden, it is
unnecessary to decide whether the papers submitted by the plaintiff in
opposition were sufficient to raise a triable issue of fact (see Giacomaro v Wilson, 58 AD3d 802; Coscia v 938 Trading Corp., 283 AD2d 538).

The bold is mine.