One day late CPLR § 3012; § 2005

 CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR § 2005 Excusable delay or default

Dinstber v Allstate Ins. Co., 2010 NY Slip Op 06200 (App. Div., 3rd 2010)

Plaintiff served a summons and verified complaint on the Insurance
Department on July 29, 2008 pursuant to Insurance Law § 1212. However,
defendant allegedly did not receive them until August 21, 2008. Although
defendant served an answer on August 28, 2008, plaintiff rejected it
because it was not verified. On September 4, 2008 — one day after
receiving plaintiff's letter of rejection — defendant served a second
answer, virtually identical to the first but properly verified, which
was rejected by plaintiff as untimely. Defendant then promptly moved to
extend its time to answer and to compel plaintiff to accept late service
thereof. Plaintiff cross-moved for a default judgment. Supreme Court
granted defendant's motion — giving defendant 30 days to file, serve and
file proof of service of the second answer — and denied plaintiff's
cross motion. Plaintiff now appeals and we affirm.
[*2]

Pursuant to CPLR 3012 (d),
Supreme Court has the discretion to permit late service of an answer
upon the demonstration of a reasonable excuse for the delay or default (see Rickert v Chestara, 56 AD3d 941, 942 [2008]; Watson v Pollacchi, 32 AD3d 565,
565 [2006]). "To that end, '[w]hether there is a reasonable excuse for a
default is a discretionary, sui generis determination to be made by the
court based on all relevant factors, including the extent of the delay,
whether there has been prejudice to the opposing party, whether there
has been willfulness, and the strong public policy in favor of resolving
cases on the merits'" (Rickert v Chestara, 56 AD3d at 942, quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Watson v Pollacchi, 32 AD3d at 565). Also relevant is whether the untimely answer sets forth a meritorious defense to plaintiff's complaint (see Rickert v Chestara, 56 AD3d at 942; Watson v Pollacchi, 32 AD3d at 565).

Here, contrary to plaintiff's assertion, we find that defendant
proffered both a reasonable excuse for its delay in serving a verified
answer and a sufficiently meritorious defense to the claims. Defendant
proffered several reasons for its delay. First, defendant submitted
evidence that it did not actually receive the complaint from the
Insurance Department until one week before the time to answer expired
and that an incorrect date of service on the transmittal sheet caused
further delay in the complaint being referred to counsel. After
unsuccessfully attempting to contact plaintiff to obtain an extension of
time to serve an answer, defendant effected such service one day after
counsel's receipt of the complaint. Secondly, defendant alleged law
office failure in neglecting to include the verification with the
initial answer, which was timely served. In our view, these
circumstances established a reasonable excuse for the default (see CPLR 2005).

We also note that defendant's answer set forth a myriad of
defenses including, among others, failure to state a cause of action,
failure to comply with the terms and conditions of the policy, fraud or
perjury on plaintiff's part and that the claim is time-barred. In
addition, defendant's attorney provided Supreme Court with the original
denial of coverage letter, which set forth in detail the reasons why
plaintiff's claim for benefits was denied. Such assertions set forth a
sufficiently meritorious defense for purposes of defendant's motion (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774-775 [2000]).

In view of defendant's reasonable excuse for the default, the
minimal delay, defendant's expeditious motion to compel acceptance of
the answer, the absence of proof that the default was willful or any
indication that plaintiff was prejudiced by the delay, and the existence
of an arguably meritorious defense, we conclude that Supreme Court's
decision to grant defendant's motion to extend the time to answer and to
compel plaintiff to accept service was a proper exercise of its
discretion (see Rickert v Chestara, 56 AD3d at 942; Acker v VanEpps, 45 AD3d 1104, 1105, 1106 [2007]).

The bold is mine.

Hoisted by one’s own petard

JT posted the case first, but I like my title better.

Abdalla v Mazl Taxi, Inc., 2010 NY Slip Op 06071 (App. Div., 2nd, 2010)

Contrary to the Supreme Court's determination, 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, in support of their motion, relied
on some of the plaintiff's own medical reports. One such report was that
of the plaintiff's treating physician, Dr. Joyce Goldenberg, which
revealed the existence of a significant limitation in the plaintiff's
right knee flexion (see Guerrero v Bernstein, 57 AD3d 845; Mendola v Demetres, 212
AD2d 515). The other was an operative report of the plaintiff's
treating orthopedic surgeon, Dr. Richard Seldes, which revealed, inter
alia, the existence of a tear in the posterior horn of the medial
meniscus in the right knee. Since the defendants did not meet 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 Guerrero v Bernstein, 57 AD3d at 845; Mendola v Demetres, 212 AD2d at 515).

Long time, no post

There's as good reason.  Well, there are two good reasons.  First, no much has come out lately.  Second, I switched firms.  Same area of law.  So, I've been busy dealing with that.

I'm going to try get some of the recent decisions up here today.  Check back tonight.

Oh, and if anyone is interested, my brother¹ started a company (T.I.N. Box Partners) that makes yardage book covers (it's a golf thing). They are pretty cool .  I don't do much in the way of golfing, but from what I hear, people keep track of yardage and what not.  The picture below has a scorecard in the cover, but it holds a little notebook normally.

1.  He is a golf pro or an assistant golf pro in Florida.  It's one or the other.

CPLR R. 3025(b) No amendment without factual basis

CPLR R. 3025 Amended and supplemental
pleadings
(b) Amendments and
supplemental pleadings by leave

DeLouise v S.K.I. Wholesale Beer Corp, 2010 NY Slip Op 05984 (App. Div., 2nd, 2010)

The plaintiff also sought leave to amend the complaint to assert the
additional causes of action of negligent entrustment, negligent hiring,
and negligent retention. Although CPLR 3025(b) provides that leave to
serve an amended pleading should be freely given (see AYW Networks v
Teleport Communications Group, 309 AD2d 724; Charleson v City of
Long Beach, 297 AD2d 777; Holchendler v We Transp., 292 AD2d
568), leave to amend should be denied where the proposed amendment is
palpably insufficient as a matter of law or is totally devoid of merit (see Morton v Brookhaven Mem. Hosp., 32 AD3d 381;
Thone v Crown Equip. Corp., 27 AD3d 723).
Here, the Supreme Court improvidently exercised its discretion in
granting the plaintiff leave to amend his complaint since the
plaintiff's motion papers were completely devoid of any factual basis
for the proposed amendments.

The bold is mine.

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

CPLR R. 3116 Signing
deposition; physical preparation; copies

(a) Signing.

CPLR R. 3212
Motion for summary judgment

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

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

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

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

The bold and underline are mine.

No specific form of oath required in New York: CPLR § 2309

CPLR §
2309 Oaths and affirmations
(b)
Form: An oath or affirmation shall be administered in a form
calculated to awaken the conscience and impress the mind of the person
taking it in accordance with his religious or ethical beliefs.

Furtow v Jenstro Enters., Inc., 2010 NY Slip Op 05987 (App. Div., 2nd, 2010)

Contrary to the Supreme Court's determination, the affidavit submitted
by the defendant Allen Yam Ching was in admissible form and should have
been considered by the court in opposition to the plaintiff's motion for
summary judgment. "There is no specific form of oath required in this
State, other than that it be calculated to awaken the conscience and
impress the mind of the person taking it in accordance with his or her
religious or ethical beliefs" (Feinman v Mennan Oil Co., 248 AD2d
503, 504; see CPLR 2309[b]). "In addition, a notary, in the
absence of a showing to the contrary, is presumed to have acted within
his or her jurisdiction and to have carried out the duties required by
law" (Feinman v Mennan Oil Co., 248 AD2d at 504; see Collins v
AA Truck Renting Corp., 209 AD2d 363). Here, Ching submitted an
affidavit which recited that he was "duly sworn" and contained a jurat
stating that the affidavit was "sworn to before" a notary public, who
signed and stamped the document. On the record presented here, the form
of the affidavit was adequate (see Sirico v F.G.G. Prods., Inc., 71 AD3d 429;
Sparaco v Sparaco, 309 AD2d 1029, 1030; Feinman v Mennan Oil
Co., 248 AD2d at 504; Collins v AA Truck Renting Corp., 209
AD2d at 363).

This is the bare minimum.  The bold is mine.

Collateral Estoppel, Res Judicata, and permissible inconsistent verdicts

Wisell v
Indo-Med Commodities, Inc., 2010 NY Slip Op 05388 (App. Div., 2^nd,
2010)

 

In this case, the plaintiff's demand for a jury trial on all
issues was, in part, improperly stricken, and, on a prior appeal, this Court
reversed and directed a joint trial of legal and equitable claims, with a jury
to determine the legal claims and the court to determine the equitable claims (see Wisell v Indo-Med Commodities, 303
AD2d 749, 750). However, at the time of this Court's decision and order in
March 2003, the parties were in the midst of a nonjury trial. The parties, in a so-ordered stipulation,
agreed to allow the nonjury trial to proceed, with "the jury trial with
respect to the plaintiff's claims and the legal counterclaims" commencing
after the completion of the nonjury trial. Although the stipulation provided
that "the commencement of the jury trial need not await the [trial]
Court's decision" with respect to the defendants' equitable counterclaims,
unless a directed verdict was awarded to "any party," or there was a
"further Decision or finding of [the trial] Court," the parties did,
in fact, wait until after a decision of the trial court was rendered, and
judgment was entered on that decision.

 

Before the jury trial could commence, the defendants moved to
dismiss the complaint based upon the doctrines of res judicata and collateral
estoppel, claiming that all factual issues were resolved in their favor with
entry of judgment on their counterclaims. The
order appealed from denied the motion on the ground that the stipulation
preserved the plaintiff's right to a jury trial on his complaint, and the
possibility of inconsistent verdicts was contemplated when the Appellate
Division issued its initial decision [*2](see Wisell v Indo-Med Commodities, 303
AD2d 749, 750, citing Mercantile & Gen. Reins. Co. v Colonial
Assur. Co., 82 NY2d 248), and the
parties entered into their stipulation. We affirm.

 

The doctrine of collateral estoppel "precludes a party from
relitigating in a subsequent action or proceeding an issue clearly raised in a
prior action or proceeding and decided against that party or those in privity,
whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494,
500; Chiara v Town of New Castle, 61 AD3d 915, 916). Pursuant to the
doctrine of res judicata, a final judgment precludes reconsideration of all
claims which could have or should have been litigated in the prior action or
proceeding against the same party (see
Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347). However, in the instant case, we are not
dealing with findings in a prior action; we are dealing with the same
action. Accordingly, the
affirmative defenses of collateral estoppel and res judicata are inapplicable
to the instant dispute, and the Supreme Court properly denied the defendants'
motion to dismiss the complaint as barred by the doctrines of collateral
estoppel and res judicata.

The bold is mine.

Death of a Party: CPLR § 1015

CPLR
§ 1015 Substitution upon death

CPLR §
1021 Substitution procedure; dismissal for failure to substitute;
presentation of appeal

Stancu v Cheon Hyang Oh, 2010 NY Slip Op 05754 (App. Div. 2^nd,
2010)

 

The death of a party divests the
court of jurisdiction to conduct proceedings in an action, the action is stayed
as to him or her pending substitution of a legal representative, and any
determination rendered without such a substitution is generally deemed a
nullity (see CPLR 1015, 1021; Reed v Grossi, 59 AD3d 509, 511; Rumola v Maimonides
Med. Ctr., 37 AD3d 696, 696-697; Lugo v GE Capital Auto Lease, 36 AD3d 409,
410; Singer v Riskin, 32 AD3d 839, 839-840; Giroux v Dunlop Tire Corp., 16 AD3d
1068, 1069; Hicks v Jeffrey, 304 AD2d 618, 618; Faraone v National Academy of
Tel. Arts & Sciences, 296 AD2d 349, 350; Gonzalez v Ford Motor Co., 295
AD2d 474, 475).

Here, the plaintiffs provided no
reason why discovery was required. Accordingly, under the circumstances of this
case, the Supreme Court properly denied the plaintiffs' motion, inter alia, to
vacate the stay of the action imposed pursuant to CPLR 1015 as a consequence of
the decedent's death to the extent of allowing them to conduct discovery to
obtain information necessary to appoint an administrator of the decedent's
estate in the State of New Jersey.

The bold is mine.

On Discovery

 These are some of the leftover cases from last week and maybe one or two
from this week.

CPLR
§ 3126 Penalties for refusal to
comply with order or to disclose

Cobenas v Ginsburg Dev. Cos., LLC, 2010 NY Slip Op 05718 (App. Div.,
2^nd, 2010)

In the absence of evidence that
the appellant willfully and contumaciously failed to appear for an examination
before trial, the Supreme Court should not have stricken his answer (see Cambry v Lincoln
Gardens, 50 AD3d 1081; Conciatori v Port
Auth. of N.Y. & N.J., 46 AD3d 501). The appropriate
remedy was to preclude the appellant from offering any testimony at trial (see Patel v DeLeon,
43 AD3d 432; Williams v Ryder, TRS,
Inc., 29 AD3d 784).

22 NYCRR 202.17 Exchange
of medical reports in personal injury and wrongful death actions

Shichman v Yasmer, 2010 NY Slip Op 05751 (App. Div., 2^nd, 2010)

The defendant here met his initial
burden of establishing his entitlement to judgment as a matter of law, which
the plaintiffs do not dispute on appeal. In opposition to the defendant's
motion, the plaintiffs principally relied on their expert's affidavit. However,
as the defendant argued and the Supreme Court found, the plaintiffs failed to
satisfy their obligations pursuant to 22 NYCRR 202.17 to serve the defendant
with a report concerning their expert's physical examination of the plaintiff.
Accordingly, the Supreme Court providently exercised its discretion in
precluding so much of the plaintiffs' expert's affidavit as was derived from
the expert's physical examination of the plaintiff (see Neils v Darmochwal, 6 AD3d 589, 590). However, under the
circumstances presented here, the Supreme Court improvidently exercised its
discretion in precluding the plaintiffs' expert's opinions in the affidavit
which were based on other evidence in the case ( id.). Based on a review of the affidavit, it is clear that the
expert's opinions derived from other sources were not "inextricably
intertwined" with his or her opinions derived from the physical
examination of the plaintiff (id.).
The expert's opinion, with regard to certain conclusions, was not dependent or
based upon the physical examination. For example, the expert's conclusion that
the defendant deviated from accepted podiatric practice by performing the
procedures at issue at the neck of the first metatarsal rather than at the head
of the first metatarsal, as proper practice allegedly demanded, was based,
inter alia, on the defendant's own deposition testimony as well as the expert's
expertise.

 

CPLR § 3101 Scope of disclosure

(a)
Generally.
There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by…

(d) Trial preparation

Spohn-Konen v Town of Brookhaven, 2010 NY Slip Op 05382 (App. Div., 2^nd,
2010)

While CPLR 3101(a) provides that "[t]here shall be full
disclosure of all matter material and necessary in the prosecution . . . of an
action" (see Allen v Crowell-Collier
Publ. Co., 21 NY2d 403, 406),
"unlimited disclosure is not permitted" (Harris v Pathmark Stores, Inc, 48
AD3d 631, 632 [internal quotation marks omitted]; see
Silcox v City of New York, 233
AD2d 494, 494). CPLR 3103(a) provides that a court may issue a protective order
denying, limiting, conditioning, or regulating the use of any disclosure
device, in order to prevent unreasonable annoyance, expense, embarrassment,
disadvantage, or other prejudice to the other party.

 

To show that additional depositions are necessary, it must be
demonstrated (1) that the representatives already deposed had insufficient
knowledge, or were otherwise inadequate, and (2) that there is a substantial
likelihood that the persons sought for depositions possess information which is
material and necessary to the prosecution of the case (see Nazario v City of New York, 27
AD3d 439; Hayden v City of New York, 26
AD3d 262; Saxe v City of New York, 250
AD2d 751, 752; Carter v New York City Bd. of Educ., 225 AD2d 512; Zollner
v City of New York, 204 AD2d
626, 627). Since the plaintiff failed to sustain her burden of demonstrating
these two elements, the Supreme Court properly granted the defendant's motion
for a protective order (see
Sladowski-Casolaro v World Championship Wrestling, Inc., 47 AD3d 803, 803-804; Barone
v Great Atl. & Pac. Tea Co., 260
AD2d 417, 417-418; Saxe v City of New York, 250 AD2d at 752). 

 

Green v William Penn Life Ins. Co. of N.Y, 2010 NY Slip Op 05327 (App. Div., 1st, 2010)

 

One reason it is so troubling that plaintiff was prejudiced in
this manner is that the situation defense counsel was attempting to solve with
his sudden introduction of an expert witness was of his own making. It arose
from defense counsel's litigation decision to use Mr. Green's treating
internist, Dr. Robert Bos, on his direct case to establish that Mr. Green had
been suicidal. Plaintiff did nothing to create the predicament in which the
defense found itself. Since the burden was always on defendant to overcome the
presumption and prove that Mr. Green committed suicide, and plaintiff had no
burden on the issue, defendant cannot possibly point to plaintiff's not calling
an expert to justify defendant's initial decision not to call its own expert.

 

The last decision is far longer than this blurb would suggest.  It’s worth reading.

Intergalactic Bugs and CPLR R. 3212 and CPLR R. 2221. Happy 4th of July.

Normally, I don’t write anything
special for the 4^th of July. 
I’m going to continue that tradition.  I will, however, be doing my civic and patriotic duty:
watching Starship Troopers.  The
number one threat facing the country today is intergalactic bugs.  I, for one, will be prepared.

In the past few days, decisions
have come out from every court but the Appellate Term, Second Department.  Creating a decision that allows an
expert to base her testimony on hypotheticals alone[1]
probably took a lot out of them, so they get a pass for their inactivity.

Today's post will cover the recent
3212 decisions.  I was going to put all of the recent decisions in one
post, but decided that it would take up too much time and space.  And,
nobody would read anything that long.

The last decision also discusses relaxing CPLR R.
2221(e)(2)'s evidence available at the time the original motion was made, requirement, in the interest of justice.  CPLR R.  2221(e) provides:

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

I'm testing out writing my posts in word, so bear with me while I try to figure out the formatting.  From the looks of it, this will be a short lived experiment.

CPLR R. 3212 Summary Judgment

Estate of Marie Merna v Simuro, 2010 NY Slip Op 05725 (App. Div., 2^nd,
2010)

As the proponent of the motion for
summary judgment, the bank was required to make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Matin v Chase
Manhattan Bank, 10 AD3d 447, 448). The bank failed to meet
this burden, as the evidence it submitted was insufficient to eliminate any triable
issues of fact as to whether the relevant account statements were "made
available" to the plaintiff before January 5, 2005, the date on which she
discovered the forgeries (UCC 4-406[4]; see
Matin v Chase Manhattan Bank, 10 AD3d at 448-449; Robinson Motor Xpress,
Inc. v HSBC Bank, USA, 37 AD3d 117).

***

However, the Supreme Court
improperly denied that branch of the bank's motion which was to strike the
plaintiff's demand for a jury trial[2]
(see generally Brian Wallach Agency v
Bank of N.Y., 75 AD2d 878; Massry
Importing Co. v Security Natl. Bank, 49 AD2d 750; David v Manufacturers Hanover Trust Co., 59 Misc 2d 248).

Espada v City of New York, 2010 NY Slip Op 05724 (App. Div., 2^nd,
2010)

Contrary to the plaintiff's
contention, the defendants' motion was not premature, as the plaintiff failed
to offer an evidentiary basis to suggest that discovery may lead to relevant
evidence or that facts essential to opposing the motion were exclusively within
the defendants' knowledge and control (see
CPLR 3212[f]; Hill v Ackall, 71
AD3d 829; Kimyagarov v Nixon
Taxi Corp., 45 AD3d 736, 737).

Evangelista v Kambanis, 2010 NY Slip Op 05726 (App. Div., 2^nd,
2010)

"A party opposing summary
judgment is entitled to obtain further discovery when it appears that facts
supporting the opposing party's position may exist but cannot then be
stated" (Matter of Fasciglione,
73 AD3d 769, 769; see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926).
Here, at the time the defendant landowners moved for summary judgment, they had
not been deposed. Moreover, it appears that information concerning whether they
created the alleged dangerous condition on the sidewalk abutting their property
which caused the plaintiff's accident, or enjoyed a special use of the sidewalk
which gave rise to the dangerous condition, may be within their exclusive
knowledge (see Adler v City of New York,
52 AD3d 549, 549-550). Under these circumstances, the Supreme Court did not
improvidently exercise its discretion in denying, as premature, the defendants'
motion for summary judgment dismissing the complaint (see Matter of Fasciglione, 73 AD3d at 769; Gruenfeld v City of New Rochelle, 72 AD3d 1025; Rodriguez v DeStefano, 72 AD3d at 926; Harvey v Nealis, 61 AD3d 935, 936).

Atiencia v Mbbco Ii, LLC, 2010 NY Slip Op 05872 (App. Div., 1^st,
2010)

A court, in the course of deciding
a motion, is empowered to search the record and award summary judgment to a
nonmoving party (see CPLR 3212(b); Lennard v Khan, 69
AD3d 812, 814 [2010]). However, with respect to the June 2009
order, the motion court erred in dismissing the Labor Law § 241(6) claim
against Farrell, as that claim was not placed before the court on plaintiffs'
summary judgment motion (see Dunham v
Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

Regarding the October 2009 order,
the motion court should have granted the motions to renew. Although the newly
submitted evidence was available at the time of the prior motion, the court
"ha[d] discretion to relax this requirement and to grant such a motion in
the interest of justice" (Mejia v
Nanni, 307 AD2d 870, 871 [2003]). Not only did plaintiffs and MBBCO offer
reasonable justification for failing to submit the evidence submitted on the motion,
but the new facts submitted do, in fact, change the prior determination (CPLR
2221[e][2]).

---

[1] I'm referring to Urban
Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U)
(App. Term, 2nd, 11th & 13th Jud. Dists. 2010).  I have a long
post about it over at the No-Fault blog.  Here is a snippet of the
decision.

 

Defendant
was not attempting to prove that Rafailova was injured as documented in her
medical records, or that she was treated as set forth in those records.
Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records
were true, the treatment allegedly provided was not medically necessary.
Therefore, as defendant was not using the underlying medical records for their
truth, such records were not being
used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303
AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is
distinguishable from a situation in which a medical expert relies upon medical
records to establish the fact of an injury (see e.g. Hambsch v New York City
Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).
Consequently, plaintiff’s argument that defendant failed to establish the
reliability of the underlying medical records in support of its claim that the
treatment provided was not medically necessary is irrelevant.  (Emphasis Added)

 

[2] This
footnote is mine. In the cases the Appellate Division cites, there was a prior agreement/contract waiving the right to a jury.  Compare,
just for fun, Haber v Cohen, 2010 NY Slip Op 05730 (App. Div., 2^nd, 2010)(“Contrary
to the defendants' contention, the amendment of their counterclaims to withdraw
their requests for equitable relief did not revive their right to a trial by
jury”)(Citations omitted).