More than one 3212 = no. And other stuff. And “a reasonable opportunity to conduct discovery”

Courthouse Corporate Ctr., LLC v Schulman, 2011 NY Slip Op 07801 (2nd Dept., 2011)

The defendants' motion for summary judgment dismissing the third cause of action was based on matters that could have been, but were not, raised in the defendants' prior motion for summary judgment. Multiple motions for summary judgment in the same action should be discouraged in the absence of a showing of newly-discovered evidence or other sufficient cause (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427; Flomenhaft v Fine Arts Museum of Long Is., 255 AD2d 290; Dillon v Dean, 170 AD2d 574). Accordingly, the Supreme Court correctly denied the defendants' motion.

Mintz & Gold, LLP v Zimmerman, 2011 NY Slip Op 08490 (1st Dept., 2011)

This was defendants' second motion for summary judgment. The motion court should have denied it on that basis, as defendants did not present sufficient cause for their successive motions (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426 [2011]). Even were we to reach the merits we would affirm because plaintiff was not required to plead special damages to set forth its claim under Civil Rights Law § 70, (see Civil Rights Law § 71).

Rubistello v Bartolini Landscaping, Inc., 2011 NY Slip Op 06483 (2nd Dept., 2011)

On its motion for summary judgment, the defendant bore the burden of " affirmatively demonstrat[ing] the merit of its claim or defense'" (Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 389, quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615) that it did not launch a force or instrument of harm as a result of a failure to exercise reasonable care in the performance of snow removal services. The defendant could not satisfy its burden by pointing to gaps in the plaintiff's proof (see Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388-389; George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d at 615). Having failed to come forward with evidence to negate this Espinal exception, the defendant failed to establish its prima facie entitlement to judgment as a matter of law on this issue, and the Supreme Court properly denied its motion.

Bank of Am., N.A. v Hillside Cycles, Inc., 2011 NY Slip Op 07788 (2nd Dept., 2011)

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Venables v Sagona, 46 AD3d 672, 673; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785; Betz v N.Y.C. Premier Props., Inc., 38 AD3d 815; cf. McFadyen Consulting Group, Inc. v Puritan's Pride, Inc., 87 AD3d 620). Here, contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in denying, as premature, that branch of its motion which was for summary judgment on the complaint,  inasmuch as discovery may result in disclosure of evidence relevant to the causes of action asserted in the complaint (see CPLR 3212[f]; Bond v DeMasco, 84 AD3d 1292, 1293; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Betz v N.Y.C. Premier Props., Inc., 38 AD3d at 815). The Supreme Court erred, however, in denying, as premature, those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's first, second, third, and twelfth affirmative defenses, and, in effect, that branch of the motion which was for summary judgment dismissing the sixth affirmative defense. The plaintiff established its entitlement to judgment as a matter of law by showing that those defenses were either inapplicable to this breach of contract action or without merit, and that discovery could not result in disclosure of evidence relevant to those affirmative defenses (see Castrol, Inc. v Parm Trading Co. of N.Y.C., 228 AD2d 633, 634). In opposition, the defendant failed to raise a triable issue of fact (see St. Clare Dev. Corp. v Porges, 70 AD3d 925; cf. Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 747, 749).

 Robiou v City of New York, 2011 NY Slip Op 08461 (1st Dept., 2009)

The motion court did not improvidently exercise its discretion in denying plaintiff's cross motion to strike defendant's answer (see Talansky v Schulman, 2 AD3d 355, 361-62 [2003]; Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Moreover, we agree with the motion court's conclusion that further discovery could not lead to "facts essential to justify opposition" (CPLR 3212[f]), warranting a denial of defendant's summary judgment motion (see Auerbach v Bennett, 47 NY2d 619, 636 [1979]; Banque Nationale de Paris v 1567 Broadway

A duty to read

Vulcan Power Co. v Munson, 2011 NY Slip Op 07917 (1st Dept., 2011)

Defendants-appellants and defendant Munson, their representative, signed the stockholders agreement without reading it. Defendants-appellants, in fact, never requested a copy of the agreement, depending instead on the representations of Munson, who, in turn, depended upon the representations of people whose interests were at odds with his and who he believed to be untrustworthy. As a result, defendants are bound by the terms of the stockholders agreement (see Sorenson v Bridge Capital Corp., 52 AD3d 265, 266 [2008], lv dismissed 12 NY3d 748 [2009]; see also Pimpinello v Swift & Co., 253 NY 159, 162-163 [1930]). Defendants' argument that the holding in Sorenson does not apply to signers of loose signature pages is without merit. A signer's duty to read and understand that which it signed is not "diminished merely because [the signer] was provided with only a signature page" (Hotel 71 Mezz Lender LLC v Falor, 64 AD3d 430, 430 [2009]; see also Friedman v Fife, 262 AD2d 167, 168 [1999]).

Defendants' failure to read the stockholders agreement also precludes its fraud in the execution defense (see First Natl. Bank of Odessa v Fazzari, 10 NY2d 394, 397-398 [1961] [finding a non-English speaker negligent for not asking his wife to read a document of obvious legal import, especially where he had done so in the past]; see also Sorenson, 52 AD3d at 266 ["negligent failure to read [an] agreement [precludes the assertion of] justifiable reliance, an essential element of fraud in the execution"]).

Kolmar Ams., Inc. v Bioversal Inc., 2011 NY Slip Op 07916 (1st Dept., 2011)

Plaintiff's attempt to insert ambiguity into the applicable tax clause contained in the General Terms and Conditions (GTC) of the agreement between the parties which required plaintiff to pay defendant all taxes "paid or incurred by [defendant] directly or indirectly with respect to the product sold," is unpersuasive. "A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Excel Graphics Tech. v CFG/AGSCB, 1 AD3d 65, 69 [2003], lv dismissed 2 NY3d 794 [2004]). Contrary to plaintiff's argument, the language employed in the contract should not be modified by, or read together with, the "Title and Risk of Loss" provision. Nor should the term "indirectly" be read narrowly as such a reading would render the counterpart term covering taxes paid "directly," meaningless, and run afoul of the "cardinal rule of construction that a court adopt an interpretation that renders no portion of the contract meaningless" (Diamond Castle Partners v IAC/Interactive Corp., 82 AD3d 421, 422 [2011]).

Article 2 of the UCC does not authorize the introduction of parole evidence to vary the plain meaning of the GTC tax clause. Extrinsic evidence does not merely "explain" or "supplement" a contractual term within the meaning of UCC 2-202 when the purported explanation or supplement actually contradicts the unambiguous contractual terms (see UCC 2-202; Intershoe, Inc. v Bankers Trust Co., 77 NY2d 517, 523 [1991]).

The motion court's grant of partial summary judgment while directing that an inquest be held after discovery is completed was a provident exercise of its "wide discretion" (see Robert Stigwood Org. v Devon Co., 44 NY2d 922, 923-24 [1978]). Pursuant to the motion court's order, at the inquest, defendant will bear the burden of proving its damages, i.e., the amount it paid or incurred, directly or indirectly, with respect to Florida fuel taxes in connection with the subject contract.

Post Note of Issue Discovery and the “Wherefore” clause.

Don't get too caught up in the NOI discovery issue.  Read all the way down where the court discusses the "Wherefore" clause.  This is why you put in "such other, further, or different
relief" etc etc etc.

22 NYCRR 202.21 Note
of issue and certificate of readiness

Tirado v Miller, 2010 NY Slip Op 04364 (App. Term, 2nd, 2010)

A certificate of readiness certifies that all discovery is completed,
waived, or not required and that the action is ready for trial (see 22
NYCRR 202.21[b]). The effect of a statement of readiness is to
ordinarily foreclose further discovery
(see Blondell v Malone, 91
AD2d 1201; Niagara Falls Urban Renewal Agency v Pomeroy Real Estate
74 AD2d 734; Bookazine Co. v J & A [*3]Bindery, 61 AD2d 919).

Discovery that is nevertheless sought after the filing of a note
of issue and certificate of readiness is governed by a different set of
procedural principles than discovery that is sought prior to the filing
of a note of issue. Pre-note discovery includes disclosure of "all
matter material and necessary in the prosecution or defense of an
(see CPLR 3101[a]), which is to be liberally construed (see
Allen v Crowell-Collier Publ. Co.,
21 NY2d 403, 406; Byck v
294 AD2d 456, 457; U.S. Ice Cream Corp. v Carvel Corp., 190
AD2d 788). Post-note discovery, on the other hand, may only be sought
under two procedural circumstances set forth in 22 NYCRR 202.21. As
discussed by this Court in an opinion by Justice Feuerstein in Audiovox
Corp. v Benyamini
(265 AD2d 135, 138), one method of obtaining
post-note discovery is to vacate the note of issue within 20 days of its
service pursuant to 22 NYCRR 202.21(e), by merely showing that
discovery is incomplete and the matter is not ready for trial. The
second method, beyond that 20 days, requires that the movant, pursuant
to 22 NYCRR 202.21(d), meet a more stringent standard and demonstrate
"unusual or unanticipated circumstances and substantial prejudice"
absent the additional discovery
(Audiovox Corp. v Benyamini, 265
AD2d at 138; see Schroeder v IESI NY Corp., 24 AD3d 180, 181; Aviles
v 938 SCY Ltd.,
283 AD2d 935, 936).

Here, it is not contested that the note of issue and certificate
of readiness were filed in February 2008. The note of issue was never
stricken as a result of any motion filed within the 20-day deadline set
forth in 22 NYCRR 202.21(a). Accordingly, any additional discovery
sought by the plaintiff from Travelers must meet the requirements of 22
NYCRR 202.21(d) that the discovery be needed because of "unusual or
unanticipated circumstances" and that its absence causes "substantial

We recognize that the trial court did not grant any unrequested
relief, but rather, granted the specific relief sought by the defendants
and Travelers in their motion of quashing the plaintiff's subpoena and,
in effect, granting a protective order. On appeal, the plaintiff takes
issue, inter alia, with the Supreme Court's having determined the motion
on a ground unrelated to the privilege and relevance issues briefed by
the parties. However, in rendering decisions on motions, trial courts
are not necessarily limited by the specific arguments raised by parties
in their submissions.
CPLR 2214(a) provides that a notice of motion
shall specify the time and place of the hearing on the motion, the
supporting papers upon which it is based, the relief demanded, and the
grounds therefor. A court typically lacks the jurisdiction to grant
relief that is not requested in the moving papers
(see McGuire v
29 AD3d 963, 965; NYCTL 1998-1 Trust v Prol Props.
18 AD3d 525, 527). The notice of motion in this instance
sought an order quashing the subpoena and granting a protective order on
the limited grounds of privilege and irrelevance. However, the notice
of motion also contained a general prayer, for "such other and further
relief as [the] [c]ourt may deem just and proper."

General relief clauses, for "such other, further, or different
relief," are often included in notices of motion by practitioners to
cover the possibility that the appropriate relief is not what the movant
has specifically asked for, "but is close enough to enable the court to
grant it" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C2214:5). The presence of a general relief clause enables
the court to grant relief that is not too dramatically unlike that which
is actually sought, as long as the relief is supported by proof in the
papers and the court is satisfied that no party is prejudiced
Frankel v Stavsky,
40 AD3d 918; HCE Assoc. v 3000 Watermill Lane
Realty Corp.,
173 AD2d 774; Lanaris v Mutual Benefit Life Ins.
9 AD2d 1015).

The bold is mine.

Choose your reasonable excuse wisely, you might get stuck with it. CPLR R. 5015

CPLR R. 5015

Tadco Constr. Corp. v Allstate Ins. Co., 2010 NY Slip Op 04362 (App. Div., 2nd, 2010)

The plaintiff moved for leave to enter a default judgment upon the
defendant's failure to answer or appear and the defendant thereafter
cross-moved to vacate its default on the ground that it had not been
properly served with the Summons with Notice. Although the Supreme Court
determined, after a hearing, that the defendant had been properly
served pursuant to CPLR 308(2), it vacated the defendant's default and
granted the defendant leave to serve an answer.

On appeal, the plaintiff contends that the Supreme Court erred in
vacating the defendant's default. In addition, the defendant seeks to
challenge by way of cross-appeal the Supreme Court's determination that
it was properly served with process. Although the defendant's
cross-appeal must be dismissed on the ground that it is not aggrieved by
the order vacating its default, the contentions raised by the defendant
can be considered as alternative grounds for affirmance
Parochial Bus Sys. v Board of Educ. of City of N.Y.
, 60 NY2d 539,
545-546; Matter of Allstate Ins. Co. v Leach, 15 AD3d 649).

In seeking to vacate its
default, the defendant was required to demonstrate a reasonable excuse
for the default and a potentially meritorious defense (see Sime v
, 37 AD3d 817; Professional Bookkeeper, Inc. v L & L
N.Y. Food Corp.
, 18 AD3d 851; Fekete v Camp Skwere, 16 AD3d
544). Contrary to the defendant's contentions, the evidence adduced at
the hearing fully supports the Supreme Court's determination that it was
properly served with process pursuant to CPLR 308(2)
(see Fashion
Page v Zurich Ins. Co.
, 50 NY2d 265, 271-272; Aguilera v Pistilli
Constr. & Dev. Corp.
, 63 AD3d 765; Eastman Kodak Co. v
Miller & Miller Consulting Actuaries
, 195 AD2d 591).

Since the defendant offered no other excuse for its default, the
Supreme Court improvidently exercised its discretion in vacating the
(see Pezolano v Incorporated City of Glen Cove, 71 AD3d
970; Sime v Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc.
v L & L N.Y. Food Corp.
, 18 AD3d at 851). Accordingly, the
Supreme Court should have denied the defendant's cross motion and
granted the plaintiff's motion for leave to enter a default judgment.

This case inspired me to add a new tag, "It's kind of a big deal."

22 NYCRR § 208.14(c); CPLR R. 3404; an interesting (but wrong) theory re: law of the case

Law of the case

22 NYCRR § 208.14 Calendar default; restoration; dismissal

(c) Actions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken. A motion must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.

CPLR R. 3404 Dismissal of abandoned cases

Bowman v Beach Concerts, Inc., 2009 NY Slip Op 07747 (App. Div., 1st, 2009)

As plaintiff concedes, the showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment (see Kaufman v Bauer, 36 AD3d 481, 482 [2007]). Indeed, this Court has previously held that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants (see Gamiel v Curtis & Reiss-Curtis, P.C., 60 AD3d 473, 474 [2009], lv dismissed __ NY3d __ [2009], 2009 NY LEXIS 3484; see also Embraer Fin. Ltd. v Servicios Aereos Profesionales, S.A., 42 AD3d 380, 381 [2007]). Thus, plaintiff's argument that this Court's prior order was "law of the case" precluding summary judgment in respondents' favor, or an "implicit recognition" of the merits of his claims, is without merit.

Deltejo v St. Nicholas Venture Inc., 2009 NY Slip Op 07689 (App. Div., 1st, 2009)\

Because the dismissal order, under CPLR 3404, did not result from an order on notice, it is not appealable as of right. However, we deem the notice of appeal to be a motion for leave to appeal, and exercise our discretion (CPLR 5701[c]) to grant leave and consider the merits of this appeal (see Jun-Yong Kim v A & J Produce Corp., 15 AD3d 251 [2005]; Mulligan v New York Cornell Med. Ctr., 304 AD2d 492 [2003]).

The matter is restored to the trial calendar without prejudice to defendants' seeking preclusion relief. It is apparent that another Justice on a prior motion for restoration had intended that the matter go to trial, and that if plaintiff could not produce certain medical evidence, defendants' remedy would be issue preclusion, not an order striking the complaint. Defendants argue that the prior order was wrongly decided and the motion to restore should have been denied outright. However, defendants did not appeal from that order, and in any event, their argument is without merit (see Burgos v 2915 Surf Ave. Food Mart, 298 AD2d 282 [2002]).