Category: CPLR R. 3212

CPLR 3212(a) provides that any party may move for summary judgment once issue has been joined. The court may "set a date after
which no such motion may be made" which must be at least 30 days after
the filing of a note of issue (CPLR 3212[a][emphasis supplied]). The
court has no authority to require the filing of a note of issue as a
prerequisite to a motion for summary judgment, since CPLR 3212(a)
clearly states that a motion for summary judgment may be made once
issue has been joined (see Richard's Home Ctr. & Lbr. v Kownacki, 247 AD2d 371).

The plaintiff's motion for summary judgment on the issue of liability was premature (see [*2]Hirsh v Greenridge Assoc., LLC, 26 AD3d 411, 412). At the time of the plaintiff's motion, no discovery had taken place and neither party had been deposed (see CPLR 3212[f]; Groves v Land's End Hous. Co., 80 NY2d 978, 980; Afzal v Board of Fire Commrs. of Bellmore Fire Dist., 23 AD3d 507,
508). Under the circumstances here, the motion should have been denied
as premature, without prejudice to renewal following the completion of
discovery (see Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753, 755; Venables v Sagona, 46 AD3d 672).

Since defendant cross-moved for summary judgment on the merits of its
breach-of-contract counterclaim, the court had authority to search the
record and grant summary judgment in favor of plaintiff, the nonmoving
party, to the extent the record established its entitlement thereto
(CPLR 3212[b]; DCA Adv. v Fox Group, 2 AD3d 173
[2003]). 

Plaintiff asserts that the instant motions should be denied as untimely
because they were made without judicial leave more than 120 days after
the filing of the note of issue (see CPLR 3212[a]). It is undisputed
that defendants previously made timely motions for summary judgment. By
decision dated February 6, 2007, Supreme Court denied the same, without
prejudice to resubmission upon papers which were to include copies of
the pleadings. Such motions were made within a reasonable time
thereafter. Accordingly, the instant motions, although untimely, were
made with leave of the court upon a showing of good cause pursuant to
the statute.

Pav-Co and Fehr argue initially that since they had not yet had the
opportunity to answer and conduct discovery, the Supreme Court should
not have addressed the merits of this dispute in the course of
resolving the parties' various motions and cross motions. The short
answer to this contention is that by arguing the merits of their
respective positions on the basis of factual affidavits and extensive
documentary evidence, the parties charted a summary judgment course and
[*8]cannot be heard to complain that the Supreme Court addressed their motions under the summary judgment standard (see Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d 500, 502; Doukas v Doukas, 47 AD3d 753; Harris v Hallberg, 36 AD3d 857,
858). Moreover, the record reflects that all of the parties had ample
opportunity in the course of the extensive motion practice before the
Supreme Court to submit whatever evidentiary material they deemed
appropriate to support their substantive assertions with respect to the
issue of liability. As to their claimed need for discovery, these
defendants failed to satisfy their burden of offering "an evidentiary
basis to suggest that discovery may lead to relevant evidence" or that
"facts essential to justify opposition to the motion were exclusively
within the knowledge and control of the plaintiff" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760; see Torres v American Bldg. Maintenance Co. of NY, 51 AD3d 905, 906; Alizio v Perpignano, 39 AD3d 781,
784). As we note below, however, upon remittal, the Supreme Court may,
in its discretion, deem additional discovery necessary with respect to
the issue of damages.

Northeast and Zorn argue that our dismissal of The Hamlet's previous
appeal from an order dated August 10, 2006, in which the Supreme Court
addressed the issue of conversion, by reason of The Hamlet's failure to
perfect that appeal, precludes our review of that issue on The Hamlet's
cross appeal from the order dated May 5, 2006, in which the same issue
was decided. That contention is incorrect. As a general rule, we do not
consider issues that were raised, or could have been raised, in a
previous appeal which was dismissed for lack of prosecution, although
we have inherent jurisdiction to do so (see Bray v Cox, 38 NY2d 350; DiGiaro v Agrawal, 41 AD3d 764,
765). Here, however, the opposite situation is presented. The order and
the judgment under review in Appeals No. 1 and 2 were entered in May
2006, while the dismissed appeal was from a subsequent order entered in
August 2006. While the better practice would have been to withdraw the
subsequent appeal, The Hamlet is not precluded from raising its
arguments with respect to the conversion cause of action on the present
cross appeal, which is taken from the earlier order and judgment (cf. Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 753-754).

The defendant did not submit an affidavit setting forth his
version of the occurrence. The motion was opposed solely by an
affirmation of counsel, which was insufficient to raise a triable issue
of fact (see Wesh v Laidlaw, 59 AD3d 534; Prince v Accardo, 54 AD3d 837, 838). The defendant failed [*2]to make an evidentiary showing that discovery would yield material and relevant evidence (see LKE Family Limited Partnership v Gillen Living Trust, 59 AD3d 602; Board of Managers 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 defendant's contentions regarding discovery were
mere expressions of hope and speculation that a deposition of the
plaintiff might disclose relevant information sufficient to defeat the
motion (see Brewster v Five Towns Health Care Realty Corp. 59 AD3d 483; Lauriello v Gallotta, 59 AD3d 497; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621).

In response to Sibbio's prima facie demonstration of his entitlement to judgment as a matter of law (see Clark v Davis, 52 AD3d 639; Lewis v Boyce, 31 AD3d 395; Shafqat v Blackman, 16 AD3d 574; Batista v Mohabir, 291 AD2d 365), the plaintiffs submitted evidence sufficient to raise a triable issue of fact (see Andujar v Wylong, 53 AD3d 465). Additionally, the motion was premature since substantial discovery remained outstanding (see CPLR 3212[f]; Patterson v Brennan, 292 AD2d 582).

We affirm. Initially, a motion to dismiss or one for summary judgment may be stayed or denied pending further discovery (see
CPLR 3211 [d]; 3212 [f]). To obtain such relief, plaintiff was obliged
to provide some evidentiary basis for its claim that further discovery
would yield material evidence and also "demonstrate how further
discovery might reveal material facts in the movant's exclusive
knowledge" (Scofield v Trustees of Union Coll. in Town of Schenectady, 267 AD2d 651, 652 [1999]; see Zinter Handling, Inc. v Britton, 46 AD3d 998,
1001 [2007]). Here, plaintiff provides nothing beyond speculation that
further discovery would yield material evidence. Also, plaintiff could
have obtained any such evidence from other sources. Mohawk, for
example, is in the best position to explain why it altered the list of
specified dealers for SUNY Stony Brook. Plaintiff could also rely on
its own records to discover whether Cassin breached his duty of loyalty
(see Chemfab Corp. v Integrated Liner Tech., 263 AD2d 788, 790 [1999]). Thus, we are unpersuaded that further discovery is needed prior to deciding defendants' motion.

Turning to the first cause of action, we do not agree with
defendants that it fails to state a claim. Accepting the complaint's
allegations as true, the first claim sufficiently alleges that
defendants used wrongful or unlawful means to obtain a competitive
advantage over plaintiff and that plaintiff would have consummated a
contract with SUNY Stony Brook but for defendants' interference (see B-S Indus. Contrs. v Burns Bros. Contrs., 256 AD2d 963, 965 [1998])^[FN2].
Nor were defendants entitled to summary judgment on the first claim, as
the motion papers did not address their actions in any detail. Their
failure to meet their initial burden on a summary judgment motion
required denial (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [*3][1985]).

…

Plaintiff's remaining arguments can be briefly disposed of.
Although plaintiff's unfair competition claims may rest upon the
misappropriation of confidential information, there is no competent
evidence in the record to suggest that such a misappropriation occurred
(see Chemfab Corp. v Integrated Liner Tech., 263 AD2d at
790). As for the punitive damages claim, such was improperly stated as
a separate cause of action and was appropriately dismissed (see Martin v Columbia Greene Humane Socy., Inc., 17 AD3d 839, 841 [2005]; Pileckas v Trzaskos, 126 AD2d 926, 927 [1987], lv denied 70 NY2d 601 [1987]).

Inasmuch as ARG's cross motion for summary judgment was made more than 120 days after
the note of issue was filed, it was untimely (see CPLR 3212 [a]; Miceli v State Farm Mut. Auto. Ins.
Co., 3 NY3d 725, 726-727 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]). Since no
good cause was articulated by ARG for its late filing, its cross motion for summary judgment
was properly denied as untimely (id.; see Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 743 [2007]; Jones v Ricciardelli, 40 AD3d 936
[2007]). Moreover, since the grounds upon which ARG premised its cross motion were not
nearly identical to those upon which Long Island Paneling relied in connection with its motion
(see Bickelman v Herrill Bowling
Corp., 49 AD3d 578, 580 [2008]; cf. Grande v Peteroy, 39 AD3d 590, 591-592 [2007]), there is no
basis upon which we may impute good cause for ARG's delay in submitting its cross motion.

Finally, we discern no abuse of discretion in Supreme Court's decision
to grant plaintiff partial summary judgment on his Labor Law § 240
(1) claim without providing Edison with additional time within which to
complete discovery (see CPLR 3212 [f]). Edison offered no
explanation for its failure to depose plaintiff during the 10 months
since it filed its answer (see Steinborn v Himmel, 9 AD3d 531, 535 [2004]; cf. Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 20 AD3d 805,
806 [2005]). Also, in opposition to plaintiff's motion, Edison
submitted an affidavit of plaintiff's coworker who witnessed his fall,
undermining Edison's unsupported and speculative claim that plaintiff
"may have exclusive knowledge of facts which may defeat his [*3]motion and claims in general" (see Steinborn v Himmel, 9 AD3d at 535; Oliveira v County of Broome, 5 AD3d 898, 899 [2004]). Given Edison's inadequate showing, the grant of summary judgment to plaintiff was not premature.

Supreme Court did not abuse its discretion in enforcing the order of
preclusion. "[T]he conditional order was self-executing and
[defendant]'s failure to produce [requested] items on or before the
date certain rendered it absolute" (Wilson v Galicia Contr. & Restoration Corp.,
10 NY3d 827, 830 [2008] [internal quotation marks and citations
omitted]). Defendant's overall pattern of noncompliance, both in
response to plaintiff's repeated demands for the requested disclosure
and following the issuance of the stipulated conditional order of
preclusion, gives rise to an inference that her conduct was willful and
contumacious (see Du Valle v Swan Lake Resort Hotel, LLC, 26 AD3d 616, 617-618 [2006]; Robinson Saw Mill Works v Speilman, 265 AD2d 604, 606 [1999]; Tleige v Troy Pediatrics,
237 AD2d 772, 773-774 [1997]). Notably, defendant stipulated to the
consequences of her conduct and proffered no adequate excuse for her
noncompliance (see Greaves v Burlingame, 12 AD3d 730, 731 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]; Cavanaugh v Russell Sage Coll., 4 AD3d 660,
660-661 [2004]). Under these circumstances, we cannot conclude that
Supreme Court improvidently exercised its discretion in ordering the
preclusion of defendant's evidence.

Nor do we find error in Supreme Court's award of summary
judgment in favor of plaintiff and dismissal of defendant's
counterclaim. Plaintiff made a prima facie showing of entitlement to
judgment for the unpaid balance of the work performed by producing,
among other things, work estimates signed by the parties, billing
statements, and evidence demonstrating that the agreed-upon work was
performed and that a portion of the work went unpaid. Defendant, unable
to offer any admissible evidence as a consequence of the order of
preclusion, failed to raise an issue of fact sufficient to withstand
summary judgment (see CPLR 3212 [b]; Zuckerman v New York,
49 NY2d 557, 562 [1980]). Similarly, in the absence of any competent
proof to support her counterclaim, it was also properly dismissed by
Supreme Court.

The appellant's submission of unsworn workers' compensation forms,
completed by persons with no apparent firsthand information of how the
accident occurred, was insufficient to raise a triable issue of fact
with respect to the issue of causation (see Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991, 992; Hanly v Quaker Chem. Co., Inc., 29 AD3d 860, 861; Bates v Yasin, 13 AD3d 474; Reed v New York City Tr. Auth., 299 AD2d 330, 332; Morissaint v Raemar Corp., 271 AD2d 586, 587; Daliendo v Johnson,
147 AD2d 312, 321). Accordingly, since there were no triable issues of
fact, summary judgment was properly awarded to the plaintiffs against
the appellant on the issue of liability on the Labor Law § 240(1)
causes of action.