Waiting to conduct discovery fatal to 3212(f) claim

Williams v New York City Tr. Auth., 2018 NY Slip Op 51286(U) (App. Term 2d Dept. 2018)

Inaction is acquiescence.

“At the outset, we reject plaintiff’s argument that defendant’s motion should be denied as premature on the ground that discovery was not yet complete (see CPLR 3212 [f]), and that plaintiff should be allowed to depose defendant’s employee and obtain certain documents. ” ‘A party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212 [f]) must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue’ ” (Sasson v Setina Mfg. Co., Inc., 26 AD3d 487, 488 [2006], quoting Cruz v Otis El. Co., 238 AD2d 540 [1997]; see also Douglas Manor Assn. v Alimaras, 215 AD2d 522 [1995]; Stevens v Hilmy, 185 AD2d 840 [1992]). Plaintiff did not schedule the deposition or obtain the documents in question in the three years that the action had been pending before defendant made the summary judgment motion. Thus, plaintiff’s “own inaction is responsible for [his] failure to ascertain any facts” necessary to defeat defendant’s motion (Stevens v Hilmy, 185 AD2d at 842).”

CPLR 2001 again as to pleadings in the dis positive application to the Court

Sensible Choice Contr., LLC v Rodger, 2018 NY Slip Op 05790 (2d Dept. 2018)

The trend – and it is logical – is that the defects (unless jurisdictional) will be excused absent prejudice.  Here is yet another example (again) of CPLR 2001 at play.

“The defendants’ contention that the plaintiff’s failure to annex the pleadings to its motion papers was a fatal defect is without merit. CPLR 3212(b) requires, inter alia, that a moving party support its motion for summary judgment by attaching a copy of the pleadings. However, 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 (see Wade v Knight Transp., Inc., 151 AD3d 1107, 1109). Here, the pleadings were not only electronically filed and available to the Supreme Court and the parties, but the answer was submitted by the defendants in opposition to the motion, and the summons and complaint were submitted in reply by the plaintiff. The defendants did not assert that they were prejudiced by the omission. Under such circumstances, the court properly disregarded the plaintiff’s omission (see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 742; Studio A Showroom, LLC v Yoon, 99 AD3d 632Welch v Hauck, 18 AD3d 1096, 1098).”

3212(a) by-pass

Reeps v BMW of N. Am., LLC, 2018 NY Slip Op 02907 (1st Dept. 2018)

“Prior court orders and stipulations between the parties show that the parties, with the court’s consent, charted a procedural course that deviated from the path established by the CPLR and allowed for defendants’ filing of this round of summary judgment motions more than 120 days after the filing of the note of issue ”

I originally read this and belied the parties could by-pass the 120-day rule by side stipulation.   But upon a more thorough reading today, I saw that express Court approval is needed to bypass the 120-day rule (or shorter depending on court rule).  Do not be lulled into believing that the parties can stipulate around 3212(a)’s time limitations without express court approval.

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.”


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.


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”