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Court May Not Deny a Dispositive Motion on a Ground Not Raised by the Parties/Assumption of Risk Precluded Suit Based Upon Falling Off an Exercise Ball

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that Supreme Court improperly denied defendant’s [Eastern Athletic’s] motion for summary judgment.  The plaintiff had fallen off an exercise ball during an exercise class.  The Second Department found plaintiff’s lawsuit was precluded by the doctrine of assumption of the risk. In denying defendant’s motion for summary judgment, Supreme Court ruled the deposition transcripts submitted by the defendant were inadmissible because they were not certified, a ground that had not been raised by the parties.  The Second Department held that a dispositive motion can not be denied on a ground that was not raised by the parties:

Here, the Supreme Court denied the subject motion for summary judgment on a ground that the parties did not litigate. The parties did not have an opportunity to address the issue relating to the certification of the plaintiff’s deposition transcript, relied upon by the Supreme Court in denying that dispositive motion. The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process. It is significant that, in Misicki v Caradonna (12 NY3d 511, 519), the Court of Appeals cautioned the judiciary that “[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” (id. at 519).

The Supreme Court erred in denying Eastern Athletic’s motion for summary judgment by deciding that the plaintiff’s deposition transcript was uncertified and, therefore, inadmissible, where that ground of admissibility was not raised by the plaintiff herself. Notably, the plaintiff’s deposition transcript recites that the plaintiff was duly sworn. Moreover, in civil cases, “inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess” … .

Had the plaintiff argued in opposition to Eastern Athletic’s motion that her deposition transcript was inadmissible because it was uncertified, Eastern Athletic could have submitted a certification in its reply papers and, if the plaintiff were not prejudiced, the Supreme Court may have considered it … . Eastern Athletic’s failure to submit to the Supreme Court a certified copy of the plaintiff’s deposition was an irregularity and, as no substantial right of a party was prejudiced, the court should have ignored the defect (see CPLR 2001). Rosenblatt v St George Health & Racqetball Assoc LLC, 2014 NY Slip Op 02917, 2nd Dept 4-30-14

 

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A LOCAL LAW WHICH CURTAILED THE POWER OF AN ELECTED OFFICER TO ACT WAS DEEMED INVALID BECAUSE IT WAS NOT SUBJECT TO A PUBLIC REFERENDUM (SECOND DEPT).
THE DEPRAVED-INDIFFERENCE ELEMENT OF THE CHARGED OFFENSES WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; ALTHOUGH DEFENDANT’S ATTEMPTS TO CARE FOR BURNS ON THE CHILD’S LEGS WERE GROSSLY INADEQUATE, THOSE MEASURES DID NOT SUPPORT A FINDING DEFENDANT DID NOT CARE AT ALL ABOUT THE CONDITION OF THE CHILD (SECOND DEPT).
SUMMARY JUDGMENT ON SPECIFIC PERFORMANCE CAUSE OF ACTION PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT).
PLAINTIFF DID NOT MAKE A SUFFICIENTLY STRONG SHOWING TO SUPPORT DISCOVERY OF DEFENDANT’S PERSONAL TAX RETURNS; PLAINTIFF’S ATTORNEY’S FAILURE TO SUBMIT A GOOD FAITH AFFIRMATION WARRANTS DENIAL OF THE DISCOVERY MOTION; THE IMPOSITION OF SANCTIONS WAS NOT SUPPORTED BY EVIIDENCE OF DEFENDANT’S WILLFUL AND CONTUMACIOUS FAILURE TO COMPLY WITH A DISCOVERY ORDER (SECOND DEPT).
DEFENSE COUNSEL DID NOT OBJECT TO AN ACCOMPLICE’S TESTIMONY ABOUT THE GUILTY PLEA ENTERED BY A NON-TESTIFYING PARTICIPANT IN THE SHOOTING (DEFENDANT WAS THEREBY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST HIM); DEFENSE COUNSEL DID NOT REQUEST THE ACCOMPLICE JURY INSTRUCTION (WHICH REQUIRES CORROBORATION OF THE ACCOMPLICE’S TESTIMONY) OR THE MISSING WITNESS JURY INSTRUCTION; NEW TRIAL ORDERED (SECOND DEPT). ​
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