Add this to the mix of why the “120 day rule” or “60 day rule” should not apply to Civil Court MSJ’

Golden v Lynch, 2014 NY Slip Op 50663(U)(App. Term 2d Dept. 2014)

From the Appellate Term, Second Department today: “Although defendant claims that she was at a disadvantage because, as a self-represented litigant, she was not advised of various procedures, we note that a party’s status as a self-represented litigant does not entitle the party to greater rights than any other litigant (see Roundtree v Singh, 143 AD2d 995 [1988]). ”

So how come Pro-Se’s do not have to file Notices of Trial?  Why doesn’t the 120 day rule apply to them?  Why are there special parts for pro-s?  Anybody want to work on an Article 78 with me?  I think I have it written in my head.

It is not a Note of Issue

Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 2014 NY Slip Op 24091 (App. Term 2d Dept 2014)

3212(a) specifically states “note of issue”.  When will the Appellate Division right this wrong?

“It was improper for the Civil Court to consider plaintiffs’ untimely cross motion for summary judgment in the absence of a showing by plaintiffs of good cause for not serving the motion within 120 days of the filing of the notice of trial, the Civil Court equivalent of a note of issue

The statute talks about a note of issue, not the civil court equivalent.  In Supreme Court, pro-se’s have to file a Note of Issue.  This is not the case in Civil Court.  This is such a perversion of the CPLR.

The 60-day rule that was never published in the law journal

Tong Li v Citiwide Auto Leasing, Inc., 2014 NY Slip Op 50481(U)(App. Term 2d Dept. 2014)

“It is undisputed that, under the rules of Part 41 of the Civil Court, motions for summary judgment are to be filed within 60 days of the filing of the notice of trial. It is also undisputed that defendant filed its motion in Part 41 more than 60 days after the notice of trial had been filed.”

Why does this Court apply 3212(a) to Civil Court matters?  It deals with Notes of Issue, not the notice of trial.  CPLR 3404 deals with Supreme Court and Count Court actions and the Second Department held that the statute does not apply to Civil Court practice as noted in Chavez.  Yet, the Appellate Term clearly noted prior to Chavez that the uniform court rules apply to CPLR 3404.  Also, absent a provision in a compliance conference order or preliminary conference order which limits the time to make a dispositive motion, who has the right to limit the 120 day period in a court where a Notice of Trial can be filed at any time?   Also, this rule is not in the law journal or on a website. It is a poor holding.  This is another case where the Second Department should really look at this issue.

A pleaded affirmative defense may not necessarily be used as an admission

Hollinden v City of New York, 2013 NY Slip Op 05676 (2d Dept. 2013)

I guess this goes into the category: Be careful what you plead?  A strange case.

“The plaintiff moved for summary judgment against the City on the first cause of action, submitting a certificate of disposition from the Supreme Court, Queens County, indicating that Dennis had been convicted of assault in the third degree and reckless endangerment in the second degree in connection with the assault at issue. The plaintiff contended that the tenth affirmative defense constituted an admission that Dennis had been acting within the scope of his employment. The Supreme Court granted the motion.

The Supreme Court erred in granting the motion. The City’s affirmative defense was that “such acts as were committed . . . in the scope of employment were justified.” In light of the conditional nature of this language, and the City’s denials that Dennis had in fact been acting within the scope of his employment, the City’s tenth affirmative defense did not constitute an admission. [*2]A plaintiff may not deem those allegations set forth in an answer that are favorable to him or her to be admissions, while refusing to be bound by those allegations that are unfavorable”

Court has discretion to overlook absence of pleadings

Washington Realty Owners, LLC v 260 Wash. St., LLC, 2013 NY Slip Op 03031 (1st Dept. 2013)

“Although CPLR 3212(b) requires that a motion for summary judgment be supported by copies of the pleadings, the court has discretion to overlook the procedural defect of missing pleadings when the record is “sufficiently complete”

Late papers in accordance with CPLR 2214 are okay

Halas v Dick’s Sporting Goods, 2013 NY Slip Op 02915 (4th Dept. 2013)

“Moreover, the court did not abuse its discretion in accepting late responding papers from plaintiff inasmuch as the court determined that plaintiff had demonstrated a ” valid excuse’ ” for the delay (Associates First Capital v Crabill, 51 AD3d 1186, 1188, lv denied 11 NY3d 702; seeCPLR 2214 [b]; Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 AD3d 1415, 1416). [*3]Notably, the delay was minimal and there was no showing of prejudice to defendant (see Associates First Capital, 51 AD3d at 1187-1188). Additionally, the court did not err in considering the affidavit submitted by plaintiff’s attorney in opposition to the motion (see generally Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414; Leon v Martinez, 84 NY2d 83, 87-88).”

Motion in limine is not a substitute for a motion for summary judgment

Carrasquillo v New York City Dept. of Educ., (DOE), 2013 NY Slip Op 01626 (1st Dept. 2013)

“Plaintiffs’ original notice of claim did not allege that the infant plaintiff slipped on water on the gym floor. It alleged merely that respondents were “negligent in the premises.” This allegation failed to provide respondents with enough information to enable them to investigate the premises liability claim (see O’Brien v City of Syracuse, 54 NY2d 353, 358 [1981]). Plaintiffs may not rely on the complaint (served 13 months after the accident), the bill of particulars (served almost two years after the accident), or the General Municipal Law § 50-h hearing testimony (given almost one year after the accident) to alert respondents to their theory of a failure to discover and remedy a wet floor (see Scott v City of New York, 40 AD3d 408, 410 [1st Dept 2007]).

The motion court improperly treated the motion in limine to dismiss the negligent [*2]supervision claim as a motion for summary judgment (see Downtown Art Co. v Zimmerman, 232 AD2d 270 [1st Dept 1996]; Brewi-Bijoux v City of New York, 73 AD3d 1112 [2d Dept 2010]).”

Oral application granted (untimely papers accepted) and the deeming acceptable of an affirmation of a physician in a different specialty

Payne v Buffalo Gen. Hosp., 2012 NY Slip Op 04901 (4th Dept. 2012)

[Oral application granted and untimely papers deemed accepted]

“With respect to appeal No. 1, we reject defendants’ contention that Supreme Court erred in granting plaintiff’s application and in thus considering plaintiff’s untimely expert affirmation. “While a court can in its discretion accept late papers, CPLR 2214 and [CPLR] 2004 mandate that the delinquent party offer a valid excuse for the delay . . . Additional factors relevant when essentially extending the return day by accepting late papers include, among others, the length of the delay and any prejudice” (Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 AD3d 1415, 1416 [internal quotation marks omitted]; see generally Foitl v G.A.F. Corp., 64 NY2d 911, 912-913). Plaintiff’s attorney offered a valid excuse for the delay (see Mallards Dairy, LLC, 71 [*2]AD3d at 1416; Associates First Capital v Crabill, 51 AD3d 1186, 1188, lv denied 11 NY3d 702; cf. Gagnon v St. Joseph’s Hosp., 90 AD3d 1605, 1607), the delay of only several days was minimal (see Associates First Capital, 51 AD3d at 1188), and “any prejudice was alleviated when defendant[s were] permitted to submit . . . reply affidavit[s] in response to plaintiff’s late submission” (Mallards Dairy, LLC, 71 AD3d at 1416).”

[Ability to use a doctor who is outside the specialty as that of the defendant physicians in medical malpractice matter]

“It is well recognized that a plaintiff’s expert need not have practiced in the same speciality as the defendants (see Diel v Bryan, 57 AD3d 1493, 1494). The record includes the redacted affirmation of plaintiff’s expert stating that the expert was a physician duly admitted to practice in New York, had been licensed and had practiced for over 20 years, had a specialty in neurology, and had practiced in emergency room settings in hospitals in Western New York. We conclude that the expert’s affirmation was sufficient to demonstrate that the expert has “the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert’s] opinion rendered [on the issues of negligence and proximate cause] is reliable”

Subsequent MSJ is okay

Valley Natl. Bank v INI Holding, LLC,  2012 NY Slip Op 03830 (2d Dept. 2012)

“Although multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause, a subsequent summary judgment motion may be properly entertained when it is substantively valid and when the granting of the motion will further the ends of justice while eliminating an unnecessary burden on the resources of the courts”

3212(b) motion – affidavit from movant necessary

Maragos v Sakurai, 2012 NY Slip Op 01592 (2d Dept. 2012)

“CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit “by a person having knowledge of the facts.” Notwithstanding this requirement, however, where a moving party supports a summary judgment motion with an attorney’s affirmation, deposition testimony, and other proof, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to the motion”

There are some courts that will do anything in their power to stave off granting  summary judgment to a movant.  Just recently, a Supreme Court Justice stated that the absence of an original affidavit rendered an otherwise uncontested affidavit to be inadmissible.  The actions of the Supreme Court in this matter are not necessarily shocking.

CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit “by a person having knowledge of the facts.” Notwithstanding this requirement, however, where a moving party supports a summary judgment motion with an attorney’s affirmation, deposition testimony, and other proof, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to the motion