New York Law Review

Tag: summary judgment

  • Esposito v. Saxon, 65 N.Y.2d 143 (1985): Sufficiency of Factual Allegations to Defeat Summary Judgment

    Esposito v. Saxon, 65 N.Y.2d 143 (1985)

    A party opposing summary judgment must present specific factual allegations, based on firsthand knowledge, that directly support their defense and are not merely conclusory or speculative.

    Summary

    This case concerns a dispute over a promissory note and stock purchase agreement. The plaintiff moved for summary judgment to enforce the note after the defendant defaulted. The defendant opposed the motion, arguing failure of consideration, claiming the plaintiff’s decedent never owned the stock. The Supreme Court, Special Term, denied the motion, but the Appellate Division reversed, deeming the defendant’s allegations conclusory. The New York Court of Appeals reversed the Appellate Division, holding that the defendant’s detailed recitation of the negotiations, based on personal knowledge, sufficiently raised a question of fact regarding the failure of consideration, thus precluding summary judgment.

    Facts

    The plaintiff’s decedent (Saxon) sold shares of stock to the defendants (Esposito) in exchange for a $365,000 promissory note and a stock purchase agreement.

    The defendants defaulted on the promissory note.

    The plaintiff, as executor of Saxon’s estate, sued to enforce the written contract and moved for summary judgment.

    The defendants opposed the motion, claiming that Saxon never owned the stock, the sale never occurred, and therefore, there was a failure of consideration.

    Procedural History

    The Supreme Court, Special Term, denied the plaintiff’s motion for summary judgment, finding that questions of fact existed as to the failure of consideration.

    The Appellate Division reversed, holding that the defendants’ allegations were conclusory and unsupported by factual substance or documentary evidence.

    The New York Court of Appeals reversed the Appellate Division’s decision.

    Issue(s)

    Whether the defendant’s allegations of failure of consideration, based on a detailed recitation of negotiations and firsthand knowledge, were sufficient to raise a question of fact and defeat the plaintiff’s motion for summary judgment.

    Holding

    Yes, because the defendant provided a detailed recitation of the negotiations based on firsthand knowledge, directly supporting his allegation that the plaintiff’s decedent did not own the subject stock, that the sale had never in fact occurred, and that the obligation to pay therefore lacked consideration.

    Court’s Reasoning

    The Court of Appeals found that the Appellate Division erred in deeming the defendant’s allegations conclusory. The Court emphasized that the defendant, John Esposito, provided a detailed account of the negotiations and closing, based on his firsthand knowledge. This account directly supported his claim that the plaintiff’s decedent did not own the stock, and therefore the obligation to pay lacked consideration.

    The Court distinguished this case from Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, where the allegations were deemed insufficient. In this case, Esposito offered an explanation for the lack of documentary evidence, further bolstering his claim.

    The Court reasoned that Esposito’s allegations could not be dismissed as “conclusory or speculative” because they were based on specific facts derived from his direct involvement in the transaction. This raised a legitimate question of fact that warranted a trial, precluding summary judgment. By presenting specific facts within his personal knowledge of the situation, the defendant successfully showed there was a genuine issue to be resolved.

  • Russo v. Penn Optical Eyeglasses, 63 N.Y.2d 1045 (1984): Requirement of Affidavit of Merit to Avoid Dismissal

    Russo v. Penn Optical Eyeglasses, 63 N.Y.2d 1045 (1984)

    A plaintiff must submit an affidavit of merit to avoid dismissal of their complaint when facing a motion for summary judgment; failure to do so is grounds for dismissal.

    Summary

    This case addresses the necessity of an affidavit of merit to prevent dismissal of a complaint. Russo sued Penn Optical Eyeglasses. The defendants moved for summary judgment, and the plaintiff failed to submit an affidavit of merit in opposition. The Court of Appeals held that the plaintiff’s failure to submit the affidavit was grounds for dismissal, finding no abuse of discretion in the lower court’s decision. This ruling reinforces the need for plaintiffs to actively demonstrate the merits of their case when challenged, highlighting the importance of procedural compliance in litigation.

    Facts

    Plaintiff Russo brought a suit against Penn Optical Eyeglasses, Cohen, Kane & Finkelstein, and Brookhaven Memorial Hospital. The specific nature of the claim against Penn Optical is not detailed in this memorandum opinion.
    Cohen, Kane, and Finkelstein, and their partnership, were named as defendants.
    Brookhaven Memorial Hospital was also named as a defendant.

    Procedural History

    The defendants, Cohen, Kane & Finkelstein, moved for summary judgment.
    The plaintiff, Russo, failed to submit an affidavit of merit in opposition to the motion.
    The Appellate Division affirmed the lower court’s decision to dismiss the complaint against Cohen, Kane & Finkelstein.
    The case was appealed to the New York Court of Appeals.
    No final order had been entered against Brookhaven Memorial Hospital.

    Issue(s)

    Whether the lower courts abused their discretion as a matter of law by dismissing the complaint against Cohen, Kane, and Finkelstein due to the plaintiff’s failure to submit an affidavit of merit in opposition to the defendants’ motion for summary judgment.

    Holding

    Yes, because it was not an abuse of discretion as a matter of law to dismiss the complaint when the plaintiff failed to submit an affidavit of merit in opposition to the defendants’ motion for summary judgment.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s order, emphasizing the plaintiff’s failure to submit an affidavit of merit. The court explicitly stated, “It was not an abuse of discretion as a matter of law to dismiss the complaint. Plaintiff failed to submit an affidavit of merit in opposition to defendants’ motion for summary judgment.” The court cited prior cases, Erwin Pearl, Inc. v Burroughs Corp., 62 NY2d 1031 and Smith v Lefrak Organization, 60 NY2d 828, to support this principle.

    The court deemed it unnecessary to consider the application of CPLR 2005 (L 1983, ch 318), reinforcing the primacy of the affidavit of merit requirement in this context.

    The Court also noted that because no final order had been entered against Brookhaven Memorial Hospital, the appeal against them was dismissed, citing Cohen and Karger, Powers of the New York Court of Appeals.

    This decision underscores the critical importance of procedural compliance in litigation. A plaintiff must actively demonstrate the merits of their case, particularly when facing a summary judgment motion. The affidavit of merit serves as a crucial tool for this purpose, and its absence can be fatal to the plaintiff’s claim.

  • Albouyeh v. County of Suffolk, 62 N.Y.2d 681 (1984): Rebutting Presumption of Permissive Use of a Vehicle

    Albouyeh v. County of Suffolk, 62 N.Y.2d 681 (1984)

    The presumption that the owner of a vehicle consented to its use is rebutted when presented with uncontradicted evidence that the vehicle was stolen, and the plaintiff fails to demonstrate that the theft location was a public highway or private road open to public motor vehicle traffic.

    Summary

    This case addresses the presumption of permissive use of a vehicle under New York law. The Court of Appeals held that the owner of a vehicle, Cusimano, was entitled to summary judgment because uncontradicted evidence showed the vehicle was stolen by Conlon. The court emphasized that the plaintiff failed to prove that the location from which the car was stolen was a public highway or a private road open to public motor vehicle traffic, which is necessary to invoke Vehicle and Traffic Law § 1210(a). The court found that the plaintiff’s speculation about potential future evidence was insufficient to overcome the established facts indicating a lack of permission.

    Facts

    Defendant Cusimano testified in a deposition that he had locked his car in his driveway. He denied that defendant Conlon had permission to drive the vehicle. Conlon, the driver of the vehicle involved in the accident, stated she had stolen the car from the driveway of the New York Institute of Technology. The arresting officer confirmed that Conlon admitted to stealing the car at the accident scene. Mrs. Cusimano was, at the time, a student at New York Institute of Technology.

    Procedural History

    The plaintiff brought suit against Cusimano (the owner) and Conlon (the driver). The lower court denied Cusimano’s motion for summary judgment. The Appellate Division reversed, granting summary judgment for Cusimano. The plaintiff appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the presumption of permissive use arising from Cusimano’s ownership of the vehicle was rebutted by uncontradicted evidence that the vehicle was stolen?

    2. Whether Vehicle and Traffic Law § 1210(a) foreclosed summary judgment for Cusimano, given the car was stolen from the New York Institute of Technology driveway?

    Holding

    1. Yes, because the uncontradicted evidence of the theft rebutted the presumption of permission. Conlon’s admission against penal interest established the car was stolen, overriding the presumption arising from ownership.

    2. No, because Vehicle and Traffic Law § 1210(a) applies only to highways or private roads open to public motor vehicle traffic, and the plaintiff failed to prove that the New York Institute of Technology driveway qualified as such a location.

    Court’s Reasoning

    The Court of Appeals relied on precedent from St. Andrassy v. Mooney and Der Ohannessian v. Elliott, stating that the presumption of permissive use is rebutted by uncontradicted evidence. Conlon’s admission that she stole the car was considered an admission against penal interest, lending credibility to the claim that Cusimano did not grant permission. The court emphasized that “Under those circumstances the presumption of permission arising from Cusimano’s admission of ownership was rebutted by the uncontradicted evidence and he was entitled to summary judgment dismissing the complaint.”

    Regarding Vehicle and Traffic Law § 1210(a), the court noted that this provision applies only to highways and private roads open to public motor vehicle traffic, as per Vehicle and Traffic Law § 1100(a). The court stated, “There is, however, no presumption that the New York Institute driveway is a private road open to public motor vehicle traffic. It was, therefore, plaintiffs’ burden to go forward with proof establishing prima facie that the place from which Conlon stole the vehicle was a highway or such a private road.” The court rejected the plaintiff’s argument that they could potentially introduce evidence at trial showing the car was stolen from a public highway, stating that such a suggestion was insufficient to meet the burden of proof required for summary judgment, per CPLR 3212(b).

  • Marine Midland Bank v. Triple A Resources, Inc., 66 N.Y.2d 687 (1985): Enforceability of Guarantees Based on SEC Filings

    Marine Midland Bank, N.A. v. Triple A Resources, Inc., 66 N.Y.2d 687 (1985)

    Corporate officers’ guarantees of company debt may be enforced based on the company’s filings with the Securities and Exchange Commission (SEC), even if the officers claim the guarantees were incomplete when signed, if the filings suggest the guarantees were validly completed and delivered.

    Summary

    Marine Midland Bank sought to recover $500,000 under notes issued by NRX Technologies, Inc., and guaranteed by its officers Anderson, Tribble, and Gluck. The officers admitted signing the guarantees but claimed they were incomplete and they lacked knowledge of their subsequent handling. The bank presented SEC filings (Forms 8-K and 10-Q) signed by Tribble, detailing the notes and guarantees. The Court of Appeals affirmed the Appellate Division’s decision to grant summary judgment against the officers, finding no triable issue of fact given the information contained in the SEC filings which suggested valid completion and delivery of the guarantees.

    Facts

    NRX Technologies, Inc. issued notes for which Marine Midland Bank sought repayment. Robert Anderson (Chairman), Joseph Tribble (President), and Joseph Gluck (Vice-President) of NRX signed written guarantees for the notes. The bank produced Forms 8-K and 10-Q filed with the SEC, signed by Tribble, outlining the notes and guarantees. Anderson received stock and stock options as inducement for providing his guarantee.

    Procedural History

    Marine Midland Bank commenced an action for summary judgment. Special Term granted summary judgment against NRX but ordered a trial to determine the validity of the guarantees. The Appellate Division modified the order by granting summary judgment against the individual guarantors. The guarantors appealed to the Court of Appeals.

    Issue(s)

    Whether summary judgment was appropriately granted against the corporate officers who guaranteed the notes, given their claim that the guarantees were incomplete when signed and the existence of SEC filings suggesting valid completion and delivery.

    Holding

    Yes, because NRX’s SEC filings revealed that NRX accepted the proceeds of the notes and Anderson received stock and stock options for his guarantees, suggesting the guarantees were completed and delivered in accordance with authorization, even if incomplete when signed.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division, emphasizing that no triable issue of fact existed. The court relied heavily on NRX’s SEC filings, noting that these filings indicated that NRX had received the proceeds from the notes and that Anderson received stock and stock options as consideration for his guarantee. This evidence strongly suggested that the guarantees were completed and delivered as authorized, even if they were initially incomplete when signed by the officers. The court found the officers’ allegations of unauthorized completion and delivery, along with their other conclusory assertions, insufficient to raise a material question of fact that would necessitate a trial. The court referenced Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112, indicating a precedent for granting summary judgment even without a cross-appeal when appropriate. The decision emphasizes the weight given to official corporate filings with the SEC as evidence of corporate actions and obligations. The court implied that corporate officers have a duty to ensure the accuracy of SEC filings and cannot later disavow the implications of those filings to avoid personal liability. Essentially, the SEC filings served as a powerful form of estoppel against the officers’ claims. The case underscores the importance of accurate and consistent reporting to regulatory bodies and the potential consequences for corporate officers who attempt to contradict these filings in subsequent litigation. The court did not explore dissenting or concurring opinions, as this was a memorandum decision.

  • Merritt Hill Vineyards v. Windy Heights Vineyard, Inc., 61 N.Y.2d 106 (1984): Distinguishing Contractual Conditions from Promises

    Merritt Hill Vineyards v. Windy Heights Vineyard, Inc., 61 N.Y.2d 106 (1984)

    A contractual condition is an event that must occur before performance is due, while a promise is a manifestation of intent to act or refrain from acting; failure to fulfill a condition excuses the other party’s performance but does not create liability for damages unless it is also an independent promise.

    Summary

    Merritt Hill Vineyards contracted to buy a controlling stock interest in Windy Heights Vineyard but refused to close when Windy Heights failed to provide a title insurance policy and mortgage confirmation as required by the contract. Merritt Hill sued for the return of its deposit and consequential damages. The New York Court of Appeals held that the requirements were conditions precedent to Merritt Hill’s obligation to close, not promises by Windy Heights. Therefore, Windy Heights’ failure to meet these conditions excused Merritt Hill’s performance and justified the return of the deposit, but did not entitle Merritt Hill to consequential damages because there was no independent promise to provide those documents.

    Facts

    In September 1981, Merritt Hill Vineyards (plaintiff) agreed to purchase a majority stock interest in Windy Heights Vineyard (defendant). The agreement stipulated that the sale was subject to certain “conditions precedent,” including Windy Heights providing a satisfactory title insurance policy and confirmation from Farmers Home Administration regarding existing mortgages by the time of closing. At the April 1982 closing, Windy Heights had not obtained the required policy or confirmation, leading Merritt Hill to refuse to close and demand the return of its $15,000 deposit.

    Procedural History

    Merritt Hill sued Windy Heights for return of the deposit and consequential damages. Special Term denied Merritt Hill’s motion for summary judgment on both claims. The Appellate Division reversed, granting summary judgment to Merritt Hill for the deposit but, searching the record, granted summary judgment to Windy Heights dismissing the claim for consequential damages. Both parties appealed.

    Issue(s)

    1. Whether the Appellate Division could grant summary judgment to a non-appealing party (Windy Heights) on the consequential damages claim.
    2. Whether Windy Heights’ failure to provide the title insurance policy and mortgage confirmation entitled Merritt Hill to consequential damages in addition to the return of the deposit.

    Holding

    1. Yes, because CPLR 3212(b) allows the Appellate Division to grant summary judgment to a non-moving party if it appears that such party is entitled to judgment as a matter of law, and the Appellate Division has original jurisdiction to entertain and decide the underlying motion.
    2. No, because the undertaking to produce the policy and mortgage confirmation was a condition of Merritt Hill’s obligation to perform, not a promise by Windy Heights to provide those items; therefore, failure to fulfill the condition excused Merritt Hill’s performance but did not constitute a breach subjecting Windy Heights to liability for consequential damages.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s order. Addressing the procedural issue, the Court held that the Appellate Division had the authority under CPLR 3212(b) to grant summary judgment to Windy Heights, even without a cross-appeal. The court distinguished its own limited jurisdiction from that of the Appellate Division, which, as a division of the Supreme Court, shares the power to search the record and award summary judgment even to a non-moving party. The court emphasized that summary judgment is an effective means for resolving disputes that present only questions of law.

    On the merits, the court distinguished between a contractual condition and a promise, citing the Restatement (Second) of Contracts. The court stated, “A promise is ‘a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.’ (Restatement, Contracts 2d, § 2, subd [1].) A condition, by comparison, is ‘an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.’ (Restatement, Contracts 2d, § 224.)” The court found that the title insurance policy and mortgage confirmation requirements were conditions precedent to Merritt Hill’s obligation to close, as they were listed under a section titled “Conditions Precedent to Purchaser’s Obligation to Close.” The court noted that there were no “words of promise” employed, and that “[d]efendants’ agreement to sell the stock of the vineyard, not those conditions, was the promise by defendants for which plaintiff’s promise to pay the purchase price was exchanged.”

    Therefore, Windy Heights’ failure to fulfill the conditions excused Merritt Hill’s performance (its obligation to close the purchase), entitling Merritt Hill to the return of its deposit. However, because Windy Heights did not independently promise to provide the title insurance policy and mortgage confirmation, its failure was not a breach of contract that would subject it to consequential damages. “While a contracting party’s failure to fulfill a condition excuses performance by the other party whose performance is so conditioned, it is not, without an independent promise to perform the condition, a breach of contract subjecting the nonfulfilling party to liability for damages (Restatement, Contracts 2d, § 225, subds [1], [3]; 3A Corbin, Contracts, § 663; 5 Williston, Contracts [Jaeger-3d ed], § 665).”

  • Parkin v. Cornell University, 78 N.Y.2d 523 (1991): Establishing Malice in Qualifiedly Privileged Defamation Claims

    Parkin v. Cornell University, 78 N.Y.2d 523 (1991)

    In a defamation action involving a qualifiedly privileged statement, the plaintiff must present sufficient evidence to raise a triable issue of fact as to whether the defendant acted with malice.

    Summary

    This case addresses the standard of evidence required to defeat summary judgment in a defamation claim where the allegedly defamatory statement is protected by a qualified privilege. The plaintiffs sued Cornell University, its employees, and its attorneys for defamation and other causes of action related to the handling of an insurance claim. The Court of Appeals affirmed the dismissal of the defamation claim, holding that the plaintiffs failed to present sufficient evidence of malice to overcome the qualified privilege protecting a disclaimer letter written by the university’s attorneys. The Court also dismissed a claim based on an alleged violation of the Insurance Law, finding no evidence of a general business practice of bad faith.

    Facts

    Plaintiffs commenced an action against Cornell University, the Andrews law firm, Royal Globe Insurance, and Patrick DiDomenico (Royal’s manager). The defamation cause of action was based on a disclaimer letter from the Andrews law firm to the plaintiffs, their attorney, and their adjuster. The plaintiffs also asserted a cause of action alleging a violation of Section 40-d of the Insurance Law, claiming Royal Globe engaged in unfair claim settlement practices.

    Procedural History

    The Supreme Court initially denied the defendants’ motion for summary judgment. The Appellate Division reversed, granting summary judgment dismissing the complaint. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the plaintiffs presented sufficient evidence to raise a triable issue of fact as to publication of the defamatory statement by Royal Globe or DiDomenico.

    2. Whether the plaintiffs presented sufficient evidence to raise a triable issue of fact as to whether the Andrews law firm acted with malice in publishing the disclaimer letter, thus overcoming the qualified privilege.

    3. Whether the plaintiffs presented sufficient evidence of a “general business practice” on the part of Royal Globe to support a private cause of action under Section 40-d of the Insurance Law.

    4. Whether the plaintiffs presented sufficient evidence of gross disregard of the insured’s rights to support a bad-faith claim against Royal Globe.

    Holding

    1. No, because nothing in the complaint or affidavits presented a triable issue as to publication by Royal Globe or DiDomenico.

    2. No, because the plaintiffs failed to present evidence of malice on the part of the Andrews firm sufficient to overcome the qualified privilege. The court stated that “one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim.”

    3. No, because the plaintiffs failed to present “evidentiary proof in admissible form” of a “general business practice” on the part of Royal Globe, as required by Section 40-d of the Insurance Law.

    4. No, because plaintiffs failed to present evidentiary proof of gross disregard of the insured’s rights, an essential element of a bad-faith claim.

    Court’s Reasoning

    Regarding the defamation claim, the court emphasized that the disclaimer letter was qualifiedly privileged. Therefore, the plaintiffs bore the burden of proving that the Andrews firm acted with malice. The court found no evidence to suggest that further examination of a witness (Turnbull) would reasonably lead to evidence of malice. The court cited Zuckerman v City of New York, stating that a party opposing summary judgment must produce evidentiary proof in admissible form to require a trial or demonstrate an acceptable excuse for failing to do so. Mere conclusions or unsubstantiated allegations are insufficient.

    Regarding the Insurance Law claim, the court assumed, without deciding, that Section 40-d could create a private cause of action. However, it found no admissible evidence of a “general business practice” of unfair claim settlement by Royal Globe, as required by the statute. Furthermore, even assuming that bad-faith principles applicable to liability insurance cases (failure to defend or settle third-party claims) extended to first-party claims under a fire insurance policy, the plaintiffs failed to demonstrate the gross disregard of the insured’s rights necessary to establish such a claim. The Court referenced Halpin v. Prudential Ins. Co. of Amer., highlighting the distinction between failure to settle a liability claim versus a first-party insurance claim.

  • Fahey v. County of Ontario, 44 N.Y.2d 934 (1978): Liberal Amendment of Pleadings and Contract Termination

    Fahey v. County of Ontario, 44 N.Y.2d 934 (1978)

    Leave to amend pleadings should be freely granted absent prejudice or surprise, and summary judgment is inappropriate when genuine issues of material fact exist regarding contract termination.

    Summary

    This case concerns a contract dispute between Fahey and the County of Ontario. The County sought to amend its answer to include a defense based on a contractual time limitation for commencing an action. The trial court denied the amendment, and the Appellate Division reversed, granting the County summary judgment. The Court of Appeals held that the trial court abused its discretion in denying the amendment because there was no showing of prejudice or surprise to the plaintiff. However, the Court of Appeals also found that summary judgment was inappropriate because there were triable issues of fact regarding whether and when the contract was terminated.

    Facts

    Fahey and the County of Ontario were parties to a contract. A dispute arose, with each party claiming the other had breached the contract. The contract contained a time limitation requiring any action to be commenced within six months of termination. Neither party gave formal notice of termination.

    Procedural History

    The trial court denied the County’s motion to amend its answer to include the defense of failure to comply with the contractual time limitation. The Appellate Division reversed, granting the motion to amend and also granting the County’s motion for summary judgment, dismissing the complaint. Fahey appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court abused its discretion in denying the defendant’s motion to amend its answer to include the defense of failure to comply with a contractual time limitation.
    2. Whether summary judgment was appropriate when there were triable issues of fact regarding whether and when the contract was terminated.

    Holding

    1. No, because there was an abuse of discretion as a matter of law by the Trial Term to deny the defendant’s motion to amend its answer because there was nothing in the papers indicative of prejudice to or surprise of plaintiff.
    2. No, because whether the action was timely commenced turns on whether in fact the contract was terminated and, if so, when, and these questions present triable issues of fact barring summary judgment.

    Court’s Reasoning

    The Court of Appeals reasoned that CPLR 3025(b) states that leave to amend pleadings “shall be freely given” absent prejudice or surprise resulting directly from the delay. Because the amendment sought to plead failure to comply with the contractual time limitation and there was no indication of prejudice or surprise to the plaintiff, the trial court’s denial of the motion to amend was an abuse of discretion as a matter of law. The court cited Fahey v County of Ontario, 44 NY2d 934, 935.

    However, the Court of Appeals also found that the Appellate Division erred in granting summary judgment. Because each party claimed the other had breached the contract, and neither gave formal notice of termination, whether the action was timely commenced depended on whether the contract was terminated and, if so, when. These questions presented triable issues of fact, making summary judgment inappropriate. The key was that contract termination was disputed and not formally executed. This lack of a clear termination date created a factual question for the jury. The court reasoned that a trial was necessary to determine the timeline of events and definitively establish the termination date, if any.

  • Ricketson v. Village of Scarsdale, 56 N.Y.2d 535 (1982): Statute of Limitations and Summary Judgment in Slander Cases

    Ricketson v. Village of Scarsdale, 56 N.Y.2d 535 (1982)

    A cause of action for slander accrues upon utterance, and a subsequent reutterance does not restart the statute of limitations for the initial utterance; additionally, a summary judgment motion can be defeated by an affidavit explaining why direct evidence is unavailable, provided a reasonable excuse is given.

    Summary

    This case concerns a slander action where the plaintiff, Ricketson, alleged two instances of slander by the defendant, the Village of Scarsdale. The New York Court of Appeals addressed whether the second instance of slander revived the statute of limitations for the first and whether the plaintiff presented sufficient evidence to defeat the defendant’s summary judgment motion. The court held that the statute of limitations barred the claim for the first instance of slander, but the affidavit submitted by the plaintiff was sufficient to overcome the summary judgment motion regarding the second instance. The court emphasized the importance of timely filing and the acceptance of reasonable excuses for failing to present direct evidence.

    Facts

    Ricketson alleged that the Village of Scarsdale slandered him on two separate occasions: in November 1979 and on February 9, 1980. Ricketson commenced an action on February 2, 1981. The defendant moved for summary judgment, arguing that the statute of limitations barred the claim based on the November 1979 statement. The plaintiff submitted an affidavit from Chatfield, who claimed Ricketson’s name, the occasion for the interview with Ricketson,. the substance of the slander Ricketson told Chatfield he had heard the defendant utter and, most important, which explained, on Chatfield’s direct knowledge, that Ricketson now refused to give an affidavit as to these facts (thereby supplying acceptable excuse for failure to meet the strict requirement of tender in admissible form).

    Procedural History

    Ricketson filed suit against the Village of Scarsdale. The defendant moved for summary judgment, claiming the statute of limitations barred the claim. The Appellate Division’s order was modified. The Court of Appeals reviewed the Appellate Division’s order pursuant to rule 500.2(b) of the Rules of the Court of Appeals (22 NYCRR 500.2[g]), modified the order with costs to the plaintiff, and affirmed it as modified.

    Issue(s)

    1. Whether the alleged reutterance of the slander on February 9, 1980, restarted the statute of limitations for the initial slanderous statement made in November 1979.

    2. Whether the affidavit submitted by Chatfield was sufficient to defeat the defendant’s summary judgment motion.

    Holding

    1. No, because the reutterance measured the time within which an action could be brought based on that utterance, but did not restart the time running anew for the one that occurred the previous November.

    2. Yes, because Chatfield’s affidavit indicated Ricketson’s name, the occasion for the interview with Ricketson,. the substance of the slander Ricketson told Chatfield he had heard the defendant utter and, most important, which explained, on Chatfield’s direct knowledge, that Ricketson now refused to give an affidavit as to these facts (thereby supplying acceptable excuse for failure to meet the strict requirement of tender in admissible form).

    Court’s Reasoning

    The Court of Appeals reasoned that the one-year statute of limitations (CPLR 215, subd. 3) barred the slander claim from November 1979 because the action was commenced on February 2, 1981, more than a year after the initial statement. The court clarified that each instance of slander creates a new cause of action with its own statute of limitations. The second utterance in February 1980 provided a basis for a timely claim, but it did not revive the expired claim from November 1979. Regarding the summary judgment motion, the court found that Chatfield’s affidavit provided a sufficient excuse for not presenting direct evidence in admissible form. The affidavit explained that Ricketson refused to provide an affidavit confirming the slander, and Chatfield’s direct knowledge of the circumstances validated the excuse. The court cited Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068, emphasizing that a reasonable excuse for failing to meet strict evidentiary requirements is acceptable to defeat a summary judgment motion.

  • Getty Oil Company v. Hartford Fire Insurance Company, 51 N.Y.2d 905 (1980): Summary Judgment Based on Circumstantial Evidence of Arson

    Getty Oil Company v. Hartford Fire Insurance Company, 51 N.Y.2d 905 (1980)

    Evidence of motive and incendiary origin, even if circumstantial, can be sufficient to defeat an insured’s motion for summary judgment in an action on a fire insurance policy.

    Summary

    Getty Oil Company sued Hartford Fire Insurance Company to recover under a fire insurance policy. Hartford argued that the fire was the result of arson. Getty moved for summary judgment, which was initially denied but later granted by the Appellate Division. The New York Court of Appeals reversed, holding that Hartford presented sufficient circumstantial evidence of motive and incendiary origin to warrant a trial on the merits. The Court emphasized that the defendant’s attorney’s affidavit detailing the police sergeant’s findings, although hearsay, was sufficient under CPLR 3212(f) to justify denying summary judgment, especially given the timing of the motion on the eve of trial.

    Facts

    Getty Oil Company sought to recover under a fire insurance policy issued by Hartford Fire Insurance Company after a fire occurred at Getty’s premises.
    Getty’s president testified that the company was in a desperate financial condition, suggesting a potential motive for arson.
    The president also stated that there were no containers on the premises when he locked up the night before the fire.
    A police sergeant found a glass container inside the premises after the fire that the president had never seen before, suggesting an incendiary origin.

    Procedural History

    Getty Oil Company sued Hartford Fire Insurance Company in September 1976.
    Getty moved for summary judgment in March 1979, after Hartford had made a CPLR 3216 demand (demand to resume prosecution of the case).
    Special Term initially denied Getty’s motion for summary judgment.
    The Appellate Division reversed and granted summary judgment to Getty.
    Hartford appealed to the New York Court of Appeals.

    Issue(s)

    Whether the defendant’s evidence of motive and incendiary origin, presented primarily through an attorney’s affidavit detailing hearsay evidence, was sufficient to defeat the plaintiff’s motion for summary judgment in a fire insurance claim.
    Whether the Appellate Division erred in granting summary judgment to the plaintiff when the defendant had presented evidence suggesting arson, even if circumstantial.

    Holding

    Yes, because evidence of motive and incendiary origin, even circumstantial, is sufficient to defeat an insured’s motion for summary judgment in an action on its fire insurance policy.
    Yes, because the defendant’s attorney’s affidavit was sufficient to invoke the protection of CPLR 3212(f), which allows for the denial of summary judgment when facts essential to justify opposition may exist but cannot then be stated.

    Court’s Reasoning

    The Court of Appeals reasoned that the deposition testimony of Getty’s president established the company’s desperate financial condition, thus providing a motive for arson. Combined with the discovery of an unfamiliar container inside the premises after the fire, this presented a circumstantial case for incendiary origin.
    The Court relied on V.F.V. Constr. Co. v Aetna Ins. Co., 56 AD2d 598, which held that evidence of motive and incendiary origin without more is sufficient to defeat an insured’s motion for summary judgment in an action on its fire insurance policy.
    The Court found that the affidavit of Hartford’s attorney, detailing the police sergeant’s findings as to the incendiary origin of the fire and explaining why an affidavit could not be obtained from the sergeant, was sufficient under CPLR 3212(f). This subdivision allows for the denial of summary judgment even when the opposing party relies on hearsay evidence, provided they demonstrate that essential facts exist but cannot be presented in admissible form at that time.
    The Court emphasized that CPLR 3212(f) is intended to protect the party opposing the motion, especially when the motion is made on the eve of trial. Requiring the defendant to depose the police sergeant before trial would give the plaintiff an unfair disclosure advantage. The Court cited Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 192, in support of this proposition.
    The Court concluded that the Appellate Division erred in granting summary judgment and remitted the matter back to the Appellate Division to review the discretion exercised by Special Term in denying the motion.

  • Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976): Motion to Dismiss After Answer Requires Notice of Summary Judgment Conversion

    40 N.Y.2d 633 (1976)

    When a motion to dismiss for lack of personal jurisdiction is made after the answer has been filed, the motion must be treated as one for summary judgment, and the court must give the parties notice that it will be so treated.

    Summary

    This case addresses the proper procedure for a defendant who wishes to challenge personal jurisdiction after filing an answer. The defendant, a physician, argued improper service in a malpractice and product liability suit. Although the defendant raised the jurisdictional defense in his answer, he later moved to dismiss based on CPLR 3211(a)(8). The Court of Appeals held that such a motion, made after the answer, must be treated as a motion for summary judgment under CPLR 3212. Further, the court must provide notice to the parties that the motion will be treated as a summary judgment motion. Because the plaintiff did not receive such notice, the case was remitted for reconsideration.

    Facts

    The plaintiff sued the defendant physician for malpractice and the drug manufacturer for product liability. Service on the physician was attempted via CPLR 308(4), by affixing the summons and complaint to his office door and mailing a copy to his “last known residence.” The defendant argued that the mailed copy was sent to the same address as the “nailed” copy, which was not his residence, and that due diligence was not demonstrated before resorting to substituted service.

    Procedural History

    The defendant stipulated to extend the time to answer, then included a jurisdictional defense in his answer. Nearly two years later, the defendant moved to dismiss under CPLR 3211(a). The plaintiff argued the defendant waived the jurisdictional defense. The lower courts ruled in favor of the defendant. The plaintiff appealed to the Court of Appeals.

    Issue(s)

    Whether a motion to dismiss for lack of personal jurisdiction, made after the answer has been filed, should be treated as a motion for summary judgment; and, if so, whether the court must provide notice to the parties that it will be so treated.

    Holding

    Yes, because CPLR 3211(c) requires that when a motion to dismiss is made after the answer, the court must give adequate notice to the parties that the motion will be treated as one for summary judgment.

    Court’s Reasoning

    The Court reasoned that while CPLR 3211(e) does not explicitly prohibit a motion to dismiss after an answer, CPLR 3212(c) implies that such a motion should be treated as a motion for summary judgment. The court emphasized that under CPLR 3211, a plaintiff is not obligated to submit affidavits on penalty of dismissal, as is the case under CPLR 3212. Quoting from the decision, “CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal, as is the case under CPLR 3212”.

    The court noted that the Judicial Conference recommended the 1973 amendment to CPLR 3211(c) requiring notice to ensure an appropriate record and submission of facts by the parties. The court held that requiring a motion challenging personal jurisdiction after an answer to be made under CPLR 3212 (or with notice of conversion from 3211 to 3212) reduces potential gamesmanship and allows efficient resolution through immediate trial of factual issues. While a more definite statement of defense could have been requested, CPLR 3013 intended to move pleadings away from rigid formalism. The court found the lower court erred by not giving the plaintiff notice that it would treat the motion to dismiss as one for summary judgment.