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Summary Judgment Premature—Disclosure Necessary

In finding Supreme Court should have treated defendant’s motion, which was made after issue was joined, as a motion for summary judgment (not a motion to dismiss), the Second Department determined the motion should not have been granted because facts essential to oppose the motion may exist but could not yet be stated:

An award of summary judgment would be premature at this stage of the case. CPLR 3212(f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion “exist but cannot then be stated” (CPLR 3212[f];…). ” This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion'”…. Here, the defendant’s motion to dismiss the complaint was made prior to the parties conducting depositions. Since the plaintiffs had no personal knowledge of the relevant facts, they should be afforded the opportunity to conduct discovery, including depositions of the defendant’s employees and other witnesses that were present during the incident complained of….  Wesolowski v St Francis Hosp, 2013 NY Slip Op 05061, 2nd Dept 7-3-13

 

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PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE; THE NOTE WAS NOT PROPERLY ENDORSED (SECOND DEPT).
PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING WITH SUFFICIENT PROOF THAT THE NOTE WAS LOST (PURSUANT TO THE UCC) AND DID NOT PRESENT EVIDENCE SUFFICIENT TO WARRANT CORRECTION OF THE LEGAL DESCRIPTION OF THE PREMISES IN THE MORTGAGE BASED UPON MUTUAL MISTAKE (SECOND DEPT).
THE INSPECTION PIT, WHICH DID NOT VIOLATE ANY STATUTE OR REGULATION, WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; PLAINTIFF’S FALL INTO THE PIT WAS NOT ACTIONABLE (SECOND DEPT).
NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT).
PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; EVIDENCE OFFERED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED IF THE OPPOSING PARTY HAS THE OPPORTUNITY TO RESPOND (SECOND DEPT).
DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT).
FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL.
THE AFFIANT DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING THE NOTE WAS PHYSICALLY DELIVERED TO THE PLAINTIFF BEFORE THE FORECLOSURE ACTION WAS COMMENCED AND DID NOT DEMONSTRATE SHE HAD PERSONAL KNOWLEDGE THAT PLAINTIFF POSSESSED THE NOTE AT THE TIME THE ACTION WAS COMMENCED; THEREFORE PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE (SECOND DEPT).

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