Archive

CPLR 3212

Parties may not necessarily chart their own procedural course.

May 31, 2016
CPLR 3212, Summary Judgment, Uncategorized

Friends of Thayer Lake v Brown, ___ NY3d ___, 2016 NY Slip Op 03647 [2016]

We looked at this case last year, when the Appellate Division allowed the parties to chart their own procedural course to summary judgment. The Court of Appeals has now held that summary judgment is simply not available where the proof reveals factual issues, whether or not the parties ask for it.

The issue was whether a certain waterway in Hamilton County is navigable-in-fact, a determination which bears significantly on the property rights of the adjacent landowners. The parties moved and cross-moved for summary judgment, and the proof was such that the trial court stated its inclination to view the ultimate determination as one of fact, to deny the motions and leave the matter for trial. The parties, both before the trial court and in the Appellate Division, noted that despite an extensive record the essential facts were not in dispute and asked the court to issue a determination as a matter of law.

Noting the general principle that the parties may chart their own procedural course, the Appellate Division held that under the circumstances it was appropriate to accede to the parties’ request and determine the dispute as a matter of law.

The Court of Appeals has now “modi-versed,” that is, it has denied the motion that the Appellate Division granted, couching the determination in terms of a modification rather than an outright reversal. In so doing, it made two larger points.

First, the parties’ ability to “chart their own procedural course” has limits. Where, as here, the course they attempt to follow runs directly contrary to established procedures, they may not necessarily ask the court to come with them.

The second, related, point, is that a party moving for summary judgment must always show its entitlement to judgment as a matter of law, and that there are no material issues of fact. Where factual issues exist, summary judgment is simply the wrong vehicle, and must be denied.

Here, the parties’ submissions clearly raised conflicting factual claims in a case which is highly fact-specific. This, despite their claim that the facts were not in dispute. While a stipulated statement of facts is not required, the conflicting evidence means that neither party has shown its entitlement to judgment as a matter of law, and the dueling summary judgment motions should all have been denied. One may ask why, if the facts were not in dispute, the parties could not arrive at a stipulated set of facts.

To the extent that the parties could not agree on stipulated facts, and did not want to go to the expense of a long trial, an alternative resolution does present itself: The parties could stipulate to the admissibility of all of the conflicting evidence, and stipulate that it would constitute the trial record. The court could then entertain arguments as to the weight and effect of the evidence, and resolve factual issues accordingly. The problem with this approach, of course, is that the plaintiff still has to sustain that pesky burden of proof, and a tie still goes to the defendant. If the conflicting evidence is not resolved in plaintiff’s favor, the verdict must be against it, and to the extent that this is a declaratory judgment action, the declaration must be in defendant’s favor.

Hit-in-the-rear cases and summary judgment

January 26, 2016
CPLR 3212, Summary Judgment, Uncategorized

Phillip v D&D Carting Co., Inc., ___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 09084 [2d Dept., 2015]

 

The Second Department reminds the bench that the mere fact of a rear-end collision does not automatically result in summary judgment, not even into a stopped vehicle and not even for a passenger in the stopped vehicle. Also, that CPLR 3212 (g) allows the court, even when denying summary judgment, to ascertain from the papers before it “what facts are not in dispute or are incontrovertible”, and in this way limit the issues at trial.

The stopped vehicle here was a passenger van, discharging passengers at a Brooklyn intersection. The rear of the van protruded into the traffic lane. The plaintiff was a passenger, belted into a seat in the last row. The rear-ending vehicle was a garbage truck. The plaintiff moved for summary judgment prior to depositions, against the owner and the driver of the truck. Plaintiff’s motion offered as proof the fact that she operated neither vehicle, was a passenger in the stopped vehicle, and so could not herself be at fault. The truck driver submitted an affidavit, in which he explained that he applied his brakes, but that the truck skidded on oil on the pavement. Supreme Court granted the plaintiff summary judgment, but the Appellate Division reversed.

Certainly, it is the rule that a rear-end collision into a stopped vehicle is enough to create an inference of negligence, and places the burden on the driver of the rear-ending vehicle to rebut the inference with a non-negligent explanation. The plaintiff must also establish his freedom from contributory negligence.

The plaintiff thus established her prima facie case on her motion, but the truck driver’s affidavit showed a non-negligent explanation, which was sufficiently detailed given the pre-deposition posture of the action. There was a triable issue of fact precluding summary judgment.

No party claimed that the plaintiff was contributorily negligent, since she was seat-belted in the last row of the van. Therefore, it was appropriate under CPLR 3212 (g) for the court to order that she was free from contributory negligence in the happening of the accident.

Summary Judgment – Timeliness – Stipulations to Extend The Deadline

May 14, 2015
CPLR 3212, Motion Practice, Summary Judgment
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Bennett v St. John’s Home & St. John’s Health Care Corp.,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 03952 [4th Dept., 2015]

Can the parties stipulate to extend the 120-day deadline set by CPLR 3212 (a) for summary judgment motions? If they do, may the court honor the stipulation? The Appellate Division here answered that the court acted within its discretion by considering the motion on its merits, and granting the motion, dismissing the complaint. The court held that the plaintiff had waived any objection to the untimely motion by consenting to it in advance.

Clearly, the court was not required to accept the stipulation. In Coty v County of Clinton,  42 A.D.3d 612 [3rd Dept., 2007], the motion court rejected the parties’ stipulation, denied the untimely motion, and the Appellate Division affirmed. Does it retain discretion to do so? The seminal decision here, of course, is Brill v City of New York, 2 NY3d 648 [2004], where the Court of Appeals stated unequivocally that the statute requires “good cause” for a late motion, and “[n]o excuse at all, or a perfunctory excuse, cannot be good ‘cause’ ” (Brill v City of New York, 2 NY3d 648, 652)

Here, the Appellate Division held that the plaintiff had waived any objection by entering into the stipulation, and that the court did indeed retain discretion to accept the stipulation and extend the deadline based on it and nothing else. The court held that Brill had not established a non-waivable public policy against extension of the deadline.

There was a one-judge dissent, which did view Brill as establishing a public policy against late summary judgment motions without sufficient excuse.

Summary Judgment Deadline – Making the Motion vs Filing It

May 5, 2015
CPLR 3212, CPLR 3402, CPLR 8020, CPLR Article 22, Summary Judgment
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Connolly v 129 E. 69th St. Corp.,

___ AD3d ___, 2015 NY Slip Op 03450 [1st Dept., 2015]

The issue presented is whether the act of “filing” motion papers can be given controlling status for summary judgment deadline purposes. The motion court and the Appellate Division said “yes,” but the argument here is that it should not.

In this case, the assigned justice’s individual part rules set a deadline for summary judgment motions not based on the date the motion was “made,” but rather on the date it was “filed.” Motions were to be “filed” within 60 days of the filing of the note of issue. The movant “made” the motion within the time limit, but “filed” the papers the day after it expired. The judge denied the motion as untimely, and the Appellate Division affirmed.

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Summary Judgment – Timeliness – Court-Ordered Deadlines

February 11, 2015
CPLR 2004, CPLR 2005, CPLR 3211, CPLR 3212

Quinones v Joan & Sanford I. Weill Med. Coll.,

114 A.D.3d 472, 980 N.Y.S.2d 88 [1st Dept., 2014]

When the court sets a deadline for summary judgment motions, shorter than the statutory 120 days, what standard governs applications for extensions of time? Is it the strict “good cause” provided for summary judgment motions generally, or is it the more lenient “procrastinator’s friend” standard of CPLR 2004? The First Department held here that the strict standard applies, no matter how the deadline was set. The purported “good cause” here, which was nothing more than the attorney’s confession of error, did not suffice. Read More

Parties May Chart Their Own Procedural Course

January 21, 2015
CPLR 3212, Summary Judgment

Friends of Thayer Lake LLC v Brown,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00420

The issue was whether a certain waterway in Hamilton County is navigable-in-fact, a determination which bears significantly on the property rights of the adjacent landowners. The parties moved and cross-moved for summary judgment, and the proof was such that the trial court stated its inclination to view the ultimate determination as one of fact, to deny the motions and leave the matter for trial. The parties, both before the trial court and in the Appellate Division, noted that despite an extensive record the essential facts were not in dispute and asked the court to issue a determination as a matter of law.
Noting the general principle that the parties may chart their own procedural course, the Appellate Division held that under the circumstances it was appropriate to accede to the parties’ request and determine the dispute as a matter of law.