Summary judgment in comparative negligence case – Old First Department Standard now controls

Rodriguez v City of New York, 2018 NY Slip Op 02287 (2018)

(1)  “The motion for summary judgment must also “show that there is no defense to the cause of action” (id.). Further, subsection [c] of the same section sets forth the procedure for obtaining partial summary judgment and states that “[i]f it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion”

(2) “Defendant’s attempts to rely on CPLR 3212’s plain language in support of its preferred approach are also unavailing. Specifically, defendant points to CPLR 3212(b), which provides; “[a] motion for summary judgment shall . . . show that there is no defense to the cause of action.” Defendant’s approach would have us consider comparative fault a defense. But, comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages.”

(3)”To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that court and the certified question answered in the negative.”

Now, when you move for summary judgment as a plaintiff, you need to: (1) Move for summary judgment in liability; and (2) To dismiss the affirmative defense of comparative negligence.

Otherwise, does summary judgment “on liability” really mean just that?

Timeliness of amended motion measured from the first motion

Healthy Way Acupuncture, P.C. v 21st Century Indem. Ins. Co., 2017 NY Slip Op 50204(U)(App. Term 2d Dept, 2017)

“In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that, after applying the deductible set forth in the insurance policy in question, it had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Plaintiff opposed the motion, arguing that defendant’s motion was untimely pursuant to CPLR 3212 (a), that defendant had not properly applied the fee schedule, and that defendant had failed to show that a deductible was applicable since the copy of the automobile insurance policy included in the moving papers contains an out-of-state certification. By order entered January 22, 2015, the Civil Court granted defendant’s motion.

It is uncontroverted that defendant served plaintiff with its original motion for summary judgment dismissing the complaint on April 14, 2014, which was within 120 days of the filing of the notice of trial on December 13, 2013. However, the Clerk of the Kings County Civil Court did not accept the filing of the motion because the notice of motion contained an incorrect address for the court. Thereafter, in May 2014, defendant filed a second, otherwise identical, motion for summary judgment dismissing the complaint, which set forth the correct address for the Civil Court. “It does not follow from the fact that this single motion had been served . . . on two separate occasions that its timeliness must be judged by the later . . . rather than the earlier . . . date of service. The mere fact that the defendant, after having served its original notice of motion on the plaintiff’s attorney in a timely fashion, filed new motion papers seeking the same relief, [was] not fatal to [such motion]” (Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 562, 817 N.Y.S.2d 293 [2006] [internal quotation marks and citations omitted]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant’s second motion for summary judgment dismissing the complaint was not untimely.”

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I thought I published this twice.  It is a very useful case.  Put this in your pocket for the instance where your motion has defects,  you need to amend it and 120-days has elapsed since the NOT was filed.

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3212(a) time period applies when motion is served

This is a no-brainer but one Plaintiff firm out there emphasizes that the 120 day rule in CPLR 3212(a) applies to when a motion is served.  Unsurprisingly, various judges have agreed with this nonsense.  This case directly states what all know: the time to file a motion is calculated from when the motion is served.

Finally, one parenthetical remark.  Why can’t we have e-filing in the Civil Courts?  It is embarrassing when New Jersey – with its byzantine ways of doing business – has made all their courts (Superior and Superior, Special Civil) e-filing while most of New York is still stuck in the mode of 1950’s file and the pray the clerk does not lose your motion.  OCA – do something already.

Mehulic v New York Downtown Hosp., 2017 NY Slip Op 06416 (1st Dept. 2017)

“The motion court properly deemed defendant’s summary judgment motion timely because it was made (that is, served) within 60 days after the filing of the note of issue, as per the court’s directive to the parties (CPLR 2211, 3212[a]; see Corchado v City of New York, 64 AD3d 429 [1st Dept 2009]).”

Pleadings not required on a motion for summary judgment

Wade v Knight Transp., Inc., 2017 NY Slip Op 05262 (2d Dept. 2017)

“Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to ” disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced.  The record here is sufficiently complete, Freudenberg was not a party to the instant motions, and Wade and the infant plaintiff do not argue that they were prejudiced in any way by the Knight defendants’ failure to include those pleadings”

3211(b) motion not subject to 3212(a) time limitations

Zarnoch v Luckina, 2017 NY Slip Op 02233 (3d Dept. 2017)

“To the extent that the cross motion sought relief pursuant to CPLR 3211 (b), it was not subject to the time limit for summary judgment motions under CPLR 3212 (a) (see Siegel, NY Prac § 272 at 470 [5th ed 2011]). The cross motion was nevertheless properly denied because plaintiff failed to meet his burden of establishing that the affirmative defense was without merit as a matter of law”

**Plaintiff’s can do some real evil with this discrepancy in the 120 day rule

Amended cross-motion (no fee necessary)

Rodriguez v 2526 Valentine LLC, 2015 NY Slip Op 08620 (2d Dept. 2015)

I thought that each application in Supreme Court required the paying of a filing fee.  Those $45 fees and the $95 RJI really do add up.  But this is New York: “death by 1000 cuts”  In the federal system, a civil case number is $400.  That is the only fee you pay.  In New York, we start the $210 index number, $95 RJI, $45 motion fee, $30 NOI fee, $ 65  Jury fee, $35 Stip of discon fee.

But here is a case where one of the 1000 cuts is being bandaged: “Contrary to Valentine’s argument, plaintiff was not required to pay an additional filing fee when she filed her amended cross motion (see CPLR 8020[a]).”

The Reply that introduced a proper reply was itself proper

SAL Med., P.C. v Clarendon Natl. Ins. Co., 2015 NY Slip Op 51449(U)(App. Term 2d Dept. 2015)

“The defect in one of the peer review reports submitted by defendant with its original motion papers, in that it did not bear a signature, was properly and timely remedied when the identical peer review report, this time bearing a signature, was submitted by defendant in its reply papers, and there is no indication that plaintiff was prejudiced in opposing defendant’s motion by this defect in form”

The abbreviated Brill rule applies (again)

Michael Palmeri, M.D., PLLC v Allstate Ins. Co., 2015 NY Slip Op 51130(U)(App. Term 2d Dept. 2015)

“Defendant failed to make its motion within 60 days of the filing of the notice of trial, as required by the rules of Part 41 of the Civil Court, and failed to offer any explanation in the Civil Court for the untimeliness of its motion. Accordingly, the Civil Court properly denied defendant’s motion as untimely”

How can a rule that was never published in the law journal or set forth in a compliance conference order have precedential effect?  This is especially the case when you are limiting a party’s right to exercise a right it enjoys under the CPLR?

The 120-day requirement does not apply to pro-se actions in the lower courts

Bryan L. Salamone, P.C. v Digiacomo, 2015 NY Slip Op 25025 (App. Term 2d Dept. 2015)

“After issue was joined, the matter was transferred to the arbitration calendar (see Rules of the Chief Judge [22 NYCRR] § 28.2 [b]) in September of 2012. (The record is silent as to whether the matter was ever arbitrated.) In June of 2013, plaintiff moved for summary judgment. By order dated July 1, 2013, the District Court denied plaintiff’s motion as untimely, on the ground that the motion had been made more than 240 days after the matter had been “transferred to the arbitration.”

“The District Court erred in finding that plaintiff’s time to make the motion for summary judgment commenced upon the matter being “transferred to the arbitration calendar,” since there is no such provision which governs the timeliness of a motion for summary judgment (see CPLR 3212 [a]; UDCA 1001, 1301; see also Uniform Rules for the District Courts [22 NYCRR] § 212.10). Inasmuch as no notice of trial, the District Court equivalent of a note of issue (see Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d & 11th Jud Dists 2006]), or certificate of readiness for trial had been filed (see e.g. Vinueza v Tarar, 100 AD3d 742 [2012]; Farrington v Heidkamp, 26 AD3d 459 [2006]; cf. Arbay v Sunoco, Inc., 31 Misc 3d 148[A], 2011 NY Slip Op 50977[U] [App Term, 9th & 10th Jud Dists 2011]), and there is no indication that the court clerk had fixed a date for trial (see UDCA 1301), plaintiff’s time to make its motion for summary judgment had not commenced. “

Just another reason why the 120-day limitation to file dispositive motions should not apply in Civil Court and District Court.  First, the CPLR deals with a Note of Issue, not a Notice of Trial.  Second, when one party is pro-se, that silly formality is dispensed with.  Thus, eve of trial summary judgment motions would be allowed.   There is no “rational basis” for why a different set of rules should apply in the general civil part for a party that has representation as opposed to a party who elects not to have representation.

 

Partial summary judgment declined after motion

Pollenex Servs., Inc. v GEICO Gen. Ins. Co., 2014 NY Slip Op 50953(U)(App. Term 2d Dept. 2014)

“Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).”