[UPDATED OCTOBER, 2016]

SUMMARY JUDGMENT MOTIONS

RARELY DISCUSSED ISSUES

 
MISCELLANEOUS CASE SUMMARIES CHOSEN BECAUSE THEY ADDRESS SUMMARY-JUDGMENT ISSUES IMPORTANT TO KNOW BUT RARELY DISCUSSED
 
CASE 1. CRITERIA FOR DISMISSAL OF SUMMARY JUDGMENT MOTION AS PREMATURE.
 
CASES 2 & 3. OTHERWISE INADMISSIBLE EVIDENCE MAY BE THE BASIS FOR DISMISSAL OF A SUMMARY JUDGMENT MOTION.
 
CASE 4. MOTION FOR SUMMARY JUDGMENT MAY BE BASED ON AN UNPLED AFFIRMATIVE DEFENSE.
 
CASES 5, 6 & 7. TORT ARISING FROM A BREACH OF CONTRACT--CRITERIA FOR A DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.

 

 

CASE 8. CONTRACT ACTION--SUMMARY JUDGMENT APPROPRIATE WHERE AMBIGUOUS LANGUAGE DEFINITIVELY EXPLAINED BY EXTRINSIC EVIDENCE.
 
CASE 9. HYBRID ACTION FOR DECLARATORY JUDGMENT AND RELIEF PURSUANT TO ARTICLE 78---DIFFERENT PROCEDURAL RULES APPLY TO EACH---ERROR TO SUMMARILY DISPOSE OF DECLARATORY JUDGMENT PORTION IN ABSENCE OF REQUEST.
 
CASE 10 & 11. ASSESSMENT OF CREDIBILITY OF SUBMITTED AFFIDAVITS IS NOT COURT'S ROLE IN SUMMARY JUDGMENT PROCEEDINGS.
 
CASES 12 & 13. UNDER SOME CIRCUMSTANCES A SECOND SUMMARY JUDGMENT MOTION MAY PROPERLY BE ENTERTAINED.
 
CASE 14. COURT CAN NOT SEARCH THE RECORD AND DECIDE SUMMARY JUDGMENT MOTION BY RULING ON ISSUES NOT RAISED BY ANYONE.
 
CASE 15. SUMMARY JUDGMENT IN LIEU OF COMPLAINT--PROMISSORY NOTE AND GUARANTY NOT SHOWN TO BE INTERTWINED WITH CONTRACT.
 
CASE 16. SUMMARY JUGMENT CANNOT REST ON GAPS IN OPPOSING PARTY'S PAPERS
 
CASE 17. PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY

 

 

CASE 1

 

CRITERIA FOR DISMISSAL OF SUMMARY JUDGMENT MOTION AS PREMATURE (NOT MET HERE)

 

Dismissal of a Summary Judgment Motion as "Premature" Requires an Evidentiary Showing that Material Information Is In the Exclusive Possession and Control of the Moving Party

 

In the course of a decision concerning an easement and land ownership, the Third Department explained the proof requirements for a claim that a summary judgment motion should be dismissed as "premature." The essence of the "premature" argument is that material facts are within the exclusive knowledge and possession of the moving party. The argument, to succeed, must be supported by an evidentiary showing. Here defendant argued that plaintiff failed to respond to certain discovery demands, but did not take the next step and demonstrate how the failure to respond deprived him of material information in plaintiff's exclusive possession:

 

... [T]here was no basis to deny plaintiff's summary judgment motion as premature. "Although a motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party, the party opposing the motion must make an evidentiary showing to support that conclusion" ... . Defendant pointed out that plaintiff failed to respond to certain discovery demands, but did not take the essential next step and show that her failure to do so deprived him of material information in her exclusive possession ... . Bailey v Dimick, 2015 NY Slip Op 04704, 3rd Dept 6-4-15

 

 

 

 

CASE 2

 

OTHERWISE INADMISSIBLE EVIDENCE MAY BE SUBMITTED TO DEFEAT A MOTION FOR SUMMARY JUDGMENT

 

Survey Without Surveyor's Affidavit Insufficient to Support Plaintiff's Summary Judgment Motion/Inadmissible Evidence (Survey) May Be Considered to Defeat Defendant's Summary Judgment Motion

 

In an action stemming from the collapse of a retaining wall between the plaintiff's and defendant's properties, the First Department noted that a survey map without an affidavit from the surveyor is insufficient to support plaintiff's motion for summary judgment, but was sufficient to support the denial of defendant's motion for summary judgment:

 

... [A] survey alone, without an accompanying affidavit from the surveyor, does not constitute competent evidence of the location of property lines and fences or retaining walls ... . Plaintiff has therefore failed to tender sufficient evidence to demonstrate entitlement to a declaratory judgment on its claim brought pursuant to Administrative Code of City of NY § 28-305.1.1.

 

Defendant met its prima facie burden as cross movant by submission of the affidavit of a land surveyor who inspected and measured the property subsequent to the collapse of the retaining wall in June 2013, and concluded that no portion of the wall had been upon defendant's property. That plaintiff's two surveys indicate that the wall was "on [the] line" of both properties, is sufficient, however, to raise a question as to the location of the wall relative to the two properties; we have long held that otherwise inadmissible evidence may be considered to defeat an application for summary judgment ...  70 Pinehurst Avenue LLC v RPN Mgt Co Inc, 2014 NY Slip Op 09029, 1st Dept 12-30-14

 

 

CASE 3

 

OTHERWISE INADMISSIBLE EVIDENCE MAY BE SUBMITTED TO DEFEAT A MOTION FOR SUMMARY JUDGMENT

 

Past Recollection Recorded and Hearsay Inadmissible at Trial Properly Considered in Opposition to Defendant's Summary Judgment Motion

 

The Third Department determined a statement made by defendant's employee [Mackey] near the time of plaintiff's slip and fall was admissible as past recollection recorded and was properly considered in opposition to defendant's summary judgment motion. In addition, hearsay which would not be admissible at trial was sufficiently corroborated to be considered in opposition to defendant's motion for summary judgment. Defendant's motion was properly denied:

 

... "[T]he requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information" ... . Here, Mackey testified that, beyond being upset that her cousin was hurt, she was unable to remember the particulars of the event, but she did recall filling out and signing a document recording her memories at the time. In this document, Mackey averred that she watched plaintiff fall by the Coinstar machine in an area that had been checked by the front-end maintenance crew approximately one hour prior to the incident. In the blank space next to the words "Condition at the time of last check prior to accident:" Mackey wrote, "ice machine is always leaking." Mackey recalled completing this document within days of the incident and explained that the form did not help to refresh her recollection of the events. On this basis, we agree with Supreme Court's ruling that Mackey's written statement was admissible as a past recollection recorded and, as such, properly considered in the context of defendant's motion for summary judgment ... 

 

Further, in keeping with the principles that, "[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented" ... and such motion should be denied if there is any doubt as to the existence of such issues ..., we likewise find no error in Supreme Court's consideration of Mackey's oral statement, notwithstanding its likely inadmissibility at trial. With that said, however, we acknowledge that, although "hearsay evidence that is inadmissible at trial may be sufficient to defeat a motion for summary judgment, there must be some additional competent evidence to support the motion or an excuse for the failure to present proof in admissible form" ... . Zupan v Price Chopper Operating Co., Inc., 2015 NY Slip Op 07893, 3rd Dept 10-29-15

 

 

CASE 4

 

SUMMARY JUDGMENT MAY BE BASED UPON AN UNPLED AFFIRMATIVE DEFENSE

 

Summary Judgment May Be Based Upon an Unpled Affirmative Defense/Oral Waiver May Be Effective in the Face of a "Written Waiver" Requirement in the Contract

 

The First Department noted that a motion for summary judgment can be based upon an unpleaded affirmative defense in the absence of surprise and determined there was a question of fact whether an oral waiver was effective in the face of a contract provision requiring any waiver to be in writing:

 

Defendants' failure to plead the affirmative defense of waiver in their answer did not preclude them from asserting such defense for the first time on summary judgment, since "[t]here is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result" ... . * * *

 

Although the management agreement contained a provision that any waivers must be in writing, "a contracting party may orally waive enforcement of a contract term notwithstanding a provision to the contrary in the agreement. Such waiver may be evinced by words or conduct, including partial performance"... . Matthew Adam Props., Inc. v The United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, 2015 NY Slip Op 02419, 1st Dept 3-24-15

 

 

 

CASES 5, 6 & 7

 

TORT LIABILITY ARISING FROM CONTRACT---DEFENSE MOTION MUST ADDRESS PRECISE THEORIES OF LIABILITY RAISED IN THE COMPLAINT

 

Defendant, In Its Summary Judgment Motion, Properly Addressed Only the Theory of "Tort Liability Arising from Contract" Which Was Alleged in the Pleadings

 

The Second Department determined defendant was entitled to summary judgment in an action based upon the allegation defendant had "launched an instrument of harm," thereby imposing liability in tort arising from a contract. Defendant demonstrated it did not launch and instrument of harm and plaintiff failed to raise a question of fact in response. The court explained the applicable law, noting that defendant need only address the specific theory of contract-based liability which was raised in the pleadings:

 

"Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party" ... . The Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely ... . Here, the only exception alleged in the pleadings with respect to the defendant Wiley Engineering, P.C. (hereinafter Wiley), was that Wiley launched a force or instrument of harm ... . Therefore, in moving for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, Wiley was only required to address this exception by demonstrating, prima facie, that it did not launch a force or instrument of harm creating or exacerbating any allegedly dangerous condition ... . Here, Wiley met its prima facie burden and, in opposition, the plaintiff failed to raise a triable issue of fact. Reece v J.D. Posillico, Inc., 2015 NY Slip Op 06580, 2nd Dept 8-19-15

 

 

In a Case Consolidated with the Case Summarized Immediately Above, Defendant Was Entitled to Summary Judgment After Demonstrating None of the Three Theories of "Tort Liability Arising from Contract" Applied---Because the Facts Are Not Discussed, It Is Not Clear Why All Three Potential Theories Were Addressed---Assume All Three Were Pled

 

In a case which was consolidated with the case summarized immediately above, the Second Department determined the defendant, J.D. Posillica, Inc., was entitled to summary judgment dismissing the complaint because it had demonstrated that none of the three theories of "tort liability arising from a contract" applied. It is not clear from the decision whether the defendant was required, by the nature of the pleadings, to address all three theories in order to be entitled to summary judgment (to be safe, address all three?):

 

"Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party" ... . The Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely ... . Here, the defendant J.D. Posillico, Inc. ... , met its initial burden of establishing its entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it by demonstrating, prima facie, that none of the exceptions were applicable as against it in this case... . Reece v J.D. Posillico, Inc., 2015 NY Slip Op 06581, 2nd Dept 8-19-15

 

 

No Need for Defendant to Address Espinal Exceptions in Its Summary Judgment Motion If Exeptions Are Not Pled by Plaintiff

 

The Second Department determined defendant snow-removal company, Brickman, was entitled to summary judgment dismissing the complaint in this slip and fall case. Because the plaintiff was not a party to the snow-removal contract with the owner of the property, Brickman owed no duty to plaintiff. The court noted that, because the plaintiff did not allege the applicability of any of the "Espinal" exceptions to the general rule against tort liability arising from a contract, the defendant was not obligated to address those exceptions in its summary judgment motion:

 

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138). However, there are three exceptions to that general rule: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" ... .

 

Brickman made a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that the plaintiff was not a party to its snow removal agreement, and that it thus owed her no duty of care ... . Inasmuch as the plaintiff did not allege facts in the complaint or bill of particulars that would establish the possible applicability of any of the Espinal exceptions ... , Brickman was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law ... . Bryan v CLK-HP 225 Rabro, LLC, 2016 NY Slip Op 01280, 2nd Dept 2-24-16

 

 

 

 

 

CASE 8

 

SUMMARY JUDGMENT APPROPRIATE WHERE AMBIGUOUS CONTRACT LANGUAGE CLARIFIED BY EXTRINSIC EVIDENCE

 

Where Extrinsic Evidence Indicates a Party's Interpretation of Ambiguous Language Is the Only Fair Interpretation, Summary Judgment Is Appropriate

 

In finding that the meaning of a title insurance policy was properly determined as a matter of law, the Second Department explained the complicated analytical criteria:

 

Generally, courts determine the rights and obligations of parties under insurance contracts based on the specific language of the policies ... . However, where the language is reasonably susceptible of more than one interpretation, and thus ambiguous, "the parties to the policy may, as an aid in construction, submit extrinsic evidence of their intent at the time of contracting" ... . "[I]f the tendered extrinsic evidence is itself conclusory and will not resolve the equivocality of the language of the contract, the issue remains a question of law for the court" ... . "Under those circumstances, the ambiguity must be resolved against the insurer which drafted the contract" ... .

 

"It is only where such evidence does not resolve the equivocality that the ambiguity must be resolved against the insurer" ... . Where there is ambiguity and the "determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence, then such determination is to be made by the jury" ... . Where, however, a party's extrinsic evidence demonstrates "not only that its interpretation is reasonable but that it is the only fair interpretation," summary judgment is appropriate ... . Demetrio v Stewart Tit Ins Co, 2015 NY Slip Op 00720, 2nd Dept 1-28-15

 

 

 

CASE 9

 

IN A HYBRID "ARTICLE 78/DECLARATORY JUDGMENT" ACTION, SEPARATE PROCEDURAL RULES APPLY TO EACH---IN THE ABSENCE OF A MOTION SPECIFICALLY SEEKING SUMMARY DISPOSITION OF THE DECLARATORY JUDGMENT ASPECT OF THE CASE, IT IS ERROR FOR THE COURT TO SUMMARILY DISPOSE OF IT

 

Court Should Not Have Summarily Determined Declaratory Judgment Action In Absence of a Request to Do So

 

The Third Department determined Supreme Court should not have summarily considered the declaratory judgment aspect of this hybrid action without a request to do so and without converting the proceeding to a summary judgment action:

 

In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek declaratory relief, on the other hand" ... . In the absence of a formalized motion requesting the "summary determination of the causes of action which seek . . . declaratory relief, it is error for [a court] to summarily dispose of those causes of action" ... . 

 

It is undisputed that there was no pending motion for summary disposition of the declaratory judgment action when Supreme Court rendered its 2014 judgment. Nor did the court provide notice to the parties that it was considering the summary disposition of the declaratory judgment action, such that the parties would be afforded an opportunity to further develop the evidentiary record and offer competent proof supportive of their respective positions ... . Matter of Ballard v New York Safety Track LLC. 2015 NY Slip

 

 

 

CASES 10 & 11

 

IN THE CONTEXT OF SUMMARY JUDGMENT, THE COURT'S FUNCTION DOES NOT INCLUDE THE ASSESSMENT OF CREDIBILITY.

 

Affidavits Should Not Have Been Rejected on Credibility Grounds

 

In this slip and fall case, the Second Department determined Supreme Court should not have rejected affidavits submitted by the plaintiff in opposition to a summary judgment motion because of inconsistencies. The affidavits were from witnesses who saw plaintiff fall and who were able to identify the cause of plaintiff's fall. In the context of a summary judgment motion, assessing credibility is not the court's function:

 

Here, the defendant established, prima facie, his entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, which demonstrated that she was unable to identify the cause of her fall ... . However, in opposition to the defendant's prima facie showing on this ground, the plaintiff raised a triable issue of fact. The plaintiff's submissions included affidavits from two individuals who witnessed the accident and identified the cause of her fall ... . The Supreme Court erred in rejecting these two eyewitness affidavits on the ground that they gave inconsistent accounts of the accident. "It is not the court's function on a motion for summary judgment to assess credibility" ..., and any inconsistencies in the affidavits of the two eyewitnesses did not render them both incredible as a matter of law, but rather, raised issues of credibility to be resolved by the factfinder ... . McRae v Venuto, 2016 NY Slip Op 00944, 2nd Dept 2-10-16

 

 

 

Court Should Not Make Credibility Determinations or Weigh the Evidence at the Summary Judgment Stage, Defendant's Summary Judgment Motion Should Have Been Denied

 

The Second Department, reversing Supreme Court, determined defendants' motion for summary judgment should not have been granted in this vehicle-collision case.  Credibility issues can not be resolved at the summary judgment stage:

 

 

It is not the court's function on a motion for summary judgment to assess credibility ... . Issue finding, rather than issue determination, is the court's proper function on such a motion ... . Thus, a motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" ... .

 

 

Here, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint. In support of their motion, the defendants submitted evidence including transcripts of the deposition testimony of both the plaintiff and the defendant driver. In those transcripts, the parties gave differing accounts of the manner in which the accident occurred, and issues of fact and credibility were presented which could not be resolved on a motion for summary judgment. Given these issues, the defendants failed to establish their prima facie entitlement to judgment as a matter of law ... . Chimbo v Bolivar, 2016 NY Slip Op 05969, 2nd Dept 9-14-16

 

 

 

CASES 12 & 13

 

SECOND SUMMARY JUDGMENT MOTION PROPERLY ENTERTAINED.

 

Under the Circumstances a Second Summary Judgment Motion Was Proper

 

In finding the defendant-city's motion for summary judgment should have been granted, the Second Department noted that, although successive summary judgment motions are disfavored, the defendant-city's second motion was properly entertained. The complaint alleged negligence on the part of the police stemming from an attack on her by her husband and the shooting of her husband by the police. Prior to the attack and the shooting, plaintiff had gone to the police station seeking protection but was sent home. The negligence action against the city/police was dismissed on governmental immunity grounds because no "special relationship" between plaintiff and the police had been demonstrated:

 

That branch of the defendants' cross motion which was for summary judgment should have been granted. Although successive motions for summary judgment are disfavored, a subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts ... .

 

Generally, "a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection" ... . When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person ... . A special duty is "a duty to exercise reasonable care toward the plaintiff," and "is born of a special relationship between the plaintiff and the governmental entity" ... . The elements required to establish a special relationship are: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" ... .

 

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the police did not assume an affirmative duty to act on Dawes' behalf ... . Graham v City of New York, 2016 NY Slip Op 00932, 2nd Dept 2-10-16

 

 

Rule Against Successive Summary Judgment Motions Does Not Apply to Issue Rejected as Not Properly Before the Court (Raised for the First Time in Reply Papers) in the Original Motion

 

The Second Department noted that the rule barring successive summary judgment motions does not apply where the issue in the second motion was not properly before the court in the first motion.  Here the defendants had raised the issue the first time in their Reply papers and the court refused to consider it:

 

We note that the general proscription against successive motions for summary judgment would not bar the defendants from moving for summary judgment dismissing the consolidated complaint because their arguments in support of dismissal ... were not properly before the Supreme Court on their original motion ... . Vaughn v Veolia Transp Inc, 2014 NY Slip Op 03679, 2nd Dept 5-21-14

 

 

CASE 14

 

COURT CAN NOT SEARCH THE RECORD AND DECIDE SUMMARY JUDGMENT MOTION BY RULING ON ISSUES NOT RAISED BY ANYONE

 

Court Should Not Have Searched the Record to Decide Motion on Grounds Not Raised in the Motion Papers

 

In the context of a suit alleging conversion stemming from the handling of an estate, the Second Department determined the "lack of capacity to sue" defense had been waived because it was not raised by defendant in his pleadings.  The court further determined Surrogate's Court exceeded its powers when it went beyond the issues placed before it in plaintiff's summary judgment motion, searched the record and decided the motion in defendant's favor on grounds not raised by anyone:

 

[The defendant] waived the defense of lack of capacity by failing to raise such defense in a pre-answer motion to dismiss or in his answer to the amended complaint in the action (see CPLR 3211[e]...).

 

... [O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court ... . "A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense" ... .

 

The Surrogate's Court improperly searched the record and awarded summary judgment to [defendant] dismissing objections 1(i) and 9. [Plaintiff] moved for summary judgment on these objections solely on the grounds that he established that [defendant] converted funds from the father's estate and failed to account for funds that the estate owed to [plaintiff]. [Defendant] did not cross-move for summary judgment dismissing those objections on the basis of the statute of limitations, nor did he argue it in opposition. In view of the limited scope of [plaintiff's] motion, it was not appropriate to search the record and award summary judgment to [defendant] dismissing these objections upon arguments that were not raised ... . Matter of Ray C., 2015 NY Slip Op 04134, 2nd Dept 5-13-15

 

 

CASE 15

 

SUMMARY JUDGMENT IN LIEU OF COMPLAINT

 

Plaintiff Entitled to Summary Judgment in Lieu of Complaint on Promissory Note; Defendant Did Not Demonstrate the Related Contract to Sell One-Half of Plaintiff's Business Was Intertwined with the Note and Guaranty

 

Reversing Supreme Court, the Second Department determined the contract for the sale of plaintiff's one-half share of a business to defendant was not intertwined with the promissory note and personal guaranty executed by the defendant in connection with the sale. Therefore plaintiff was entitled to summary judgment in lieu of a complaint based upon defendant's default:

 

The plaintiff made a prima facie showing of his entitlement to judgment as a matter of law by submitting the promissory note, which contained an unequivocal and unconditional obligation to pay, the personal guaranty, and proof of the defendants' failure to make payments on the note according to its terms ... .

 

In opposition, the defendants failed to raise a triable issue of fact as to a bona fide defense ... . "[T]he general rule is that the breach of a related contract cannot defeat a motion for summary judgment on an instrument for money only unless it can be shown that the contract and the instrument are intertwined and that the defenses alleged to exist create material issues of triable fact" ... .

 

Here, contrary to the Supreme Court's determination, the evidence submitted by the defendants failed to establish that the agreement and the promissory note were intertwined, such that any breach of the related agreement by the plaintiff may create a defense to payment on the note. Chervinsky v Rezhets, 2015 NY Slip Op 07463, 2nd Dept 10-14-15

 

 

CASE 16

 

SUMMARY JUDGMENT CANNOT REST ON GAPS IN OPPOSING PARTY'S PAPERS

 

Summary Judgment Cannot Rest on Gaps in the Opposing Party's Papers; Moving Party Must Address Every Necessary Element with Substantive Proof

 

 

The Second Department, in a dispute among business partners, determined certain motions for summary judgment should not have been granted. The court explained that summary judgment cannot rest on gaps in the opposing party's proof. A defendant bringing the motion must make out a prima facie case by addressing every issue raised in the pleadings. Where every issue is not addressed with substantive proof, the motion must be denied without reference to the opposing papers:

 

 

"[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" ... . In this case, the individual defendants failed to affirmatively demonstrate, prima facie, that they did not breach any fiduciary duty owed to the plaintiffs during the course of all of the transactions or occurrences described in the amended complaint ... . Similarly, the individual defendants failed to affirmatively establish, prima facie, that the plaintiffs did not sustain any damages as a result of their alleged misconduct ... .

 

 

Furthermore, the submissions of the individual defendants were insufficient to establish, prima facie, that the application of the business judgment rule protected all of the transactions or occurrences described in the amended complaint from judicial scrutiny. * * * The individual defendants' representations that all of the challenged conduct outlined in the amended complaint was performed in furtherance of the Partnership's legitimate interests were conclusory, unsubstantiated, and, without more, amounted to bare legal conclusions that were insufficient to establish that the business judgment rule barred judicial inquiry into these matters ... . Katz v Beil, 2016 NY Slip Op 05977, 2nd Dept 9-14-16

 

 

CASE 17

 

PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY

 

In Order to be Entitled to Summary Judgment Finding Defendant Liable in an Accident Case, Plaintiff Must Demonstrate Freedom from Comparative Negligence

 

 

The First Department, over an extensive two-justice dissent, determined that, where a question of fact has been raised in an accident case about whether plaintiff was comparatively negligent, summary judgment finding defendant liable cannot be granted. Here, the plaintiff was alleged to have been injured while walking behind a sanitation truck which was backing up:

 

 

In this case, we are revisiting a vexing issue regarding comparative fault: whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault. This issue has spawned conflicting decisions between the judicial departments, as well as inconsistent decisions by different panels within this Department. The precedents cited by the dissent have, in fact, acknowledged as much. After a review of the relevant precedents, we believe that the original approach adopted by this Department, as well as that followed in the Second Department, which requires a plaintiff to make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability, is the correct one. ...

 

 

The issue that arises in the context of a summary judgment motion brought by a plaintiff on the issue of liability is whether, as the dissent posits, the motion should be granted and the issue of contributory negligence considered during the damages portion of the case or where the defendant raises an issue of fact with respect to the plaintiff's negligence and the plaintiff fails to show the absence of negligence on his or her part, the motion must be denied and that issue considered during the liability phase of the trial. As discussed herein, the latter is the fairer, and therefore the proper way to proceed. Rodriguez v City of New York, 2016 NY Slip Op 05943, 1st Dept 9-1-16

 

 

 

 

 

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