PRACTICE PAGE NO. 3

 

SUMMARY JUDGMENT MOTIONS

 

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.

 

 

CASE 2. OTHERWISE INADMISSIBLE EVIDENCE MAY BE THE BASIS FOR DISMISSAL OF A SUMMARY JUDGMENT MOTION.

 

 

CASE 3. MOTION FOR SUMMARY JUDGMENT MAY BE BASED ON AN UNPLED AFFIRMATIVE DEFENSE.

 

 

CASES 4 & 5. TORT ARISING FROM A BREACH OF CONTRACT--CRITERIA FOR A DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.

 

 

 

CASE 6. CONTRACT ACTION--SUMMARY JUDGMENT APPROPRIATE WHERE AMBIGUOUS LANGUAGE DEFINITIVELY EXPLAINED BY EXTRINSIC EVIDENCE.

 

 

CASE 7. 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 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

 

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 4 & 5

 

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 in this Action But Only One Needed to Be Addressed in the Other (To Be Safe, Address All Three?)

 

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

 

 

 

CASE 6

 

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 7

 

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 Op 01845, 3rd Dept 3-5-15