Marom v. Anselmo, 90 A.D.3d 622

Murphy v. Bayer Healthcare Pharms., Inc. 933 N.Y.S.2d 744 (App. Div. 2d Dep‘t 2011) The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the discretion of the motion court (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122–123, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999]; Pirro Group, LLC v. One Point St., Inc., 71 A.D.3d 654, 655, 896 N.Y.S.2d 152 [2010]; Novick v. DeRosa, 51 A.D.3d 885, 858 N.Y.S.2d 371 [2008]). The drastic remedy of striking a pleading is warranted where a party‘s failure to comply with court-ordered disclosure is willful and contumacious (see Batshever v. Jafar, 73 A.D.3d 1108, 903 N.Y.S.2d 441 [2010]; Matter of W.O.R.C. Realty Corp. v. Assessor, 32 A.D.3d 860, 861, 821 N.Y.S.2d 234 [2006]). The willful and contumacious character of a party‘s conduct can be inferred from a party‘s repeated failure to comply with discovery demands or orders without a reasonable excuse (see Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612 [2011]; Morgenstern v. Jeffsam Corp., 78 A.D.3d 913, 914, 912 N.Y.S.2d 231 [2010]). Here, the plaintiff‘s willful and contumacious conduct can be inferred from her repeated failure, over an extended period of time, to appear for a deposition, to provide outstanding authorizations, and to adequately respond to the defendants’ discovery demands in compliance with the Supreme Court‘s orders without a reasonable excuse. Accordingly, the Supreme Court providently exercised its discretion in granting those branches of the motion of the defendants Bayer Healthcare Pharmaceuticals, Inc., and Berlex Laboratories, Inc., and the separate motion of the defendants Carmen A. Galvez and Esperanza Angeles, which were pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against each of them. Rivera, J.P., Leventhal, Roman and Sgroi, JJ., concur. *** Marom v. Anselmo 933 N.Y.S.2d 744 (App. Div. 2d Dep‘t 2011) On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002]; Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]; Prestige Caterers, Inc. v. Siegel, 88 A.D.3d 679, 930 N.Y.S.2d 252 [2011]; Peery v. United Capital Corp., 84 A.D.3d 1201, 924 N.Y.S.2d 470 [2011]). However, where, as here, evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, “the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rietschel v. Maimonides Med. Ctr., 83 A.D.3d 810, 810, 921 N.Y.S.2d 290 [2011]; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977]; Cog-Net Bldg. Corp. v. Travelers Indem. Co., 86 A.D.3d 585, 586, 927 N.Y.S.2d 383 [2011]). Here, the amended complaint stated a cause of action to recover damages for legal malpractice by alleging that the defendant attorney failed to structure the plaintiff‘s $500,000 investment in a condominium construction project as a loan secured by a first mortgage on the condominium property as the defendant had agreed to do, and that, but for this failure, the plaintiff would have been able to recover his investment when the project was abandoned (see Garten v. Shearman & Sterling LLP, 52 A.D.3d 207, 859 N.Y.S.2d 80 [2008]; see generally Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007]; Arnav Indus., Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 N.Y.2d 300, 303–304, 727 N.Y.S.2d 688, 751 N.E.2d 936 [2001]). Moreover, the evidentiary proof submitted by the defendant in support of his motion, which consisted primarily of a limited liability company operating agreement signed by the plaintiff three days after the closing on the condominium property, and a loan resolution also allegedly signed after the closing, did not demonstrate that a material fact alleged in the complaint was not a fact at all, and that no significant dispute existed regarding it. Accordingly, the Supreme Court properly denied that branch of the defendant‘s motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(7). Further, since the documentary evidence submitted by the defendant did not utterly refute the plaintiff‘s factual allegations, and conclusively establish a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Schetty v. Target Corp., 88 A.D.3d 984, 931 N.Y.S.2d 693 [2011]; Cog-Net Bldg. Corp. v. Travelers Indem. Co., 86 A.D.3d at 585–586, 927 N.Y.S.2d 383), the Supreme Court properly denied that branch of the defendant‘s motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(1) (see Kram Knarf, LLC v. Djonovic, 74 A.D.3d 628, 903 N.Y.S.2d 65 [2010]; Garten v. Shearman & Sterling LLP, 52 A.D.3d at 207, 859 N.Y.S.2d 80). Dillon, J.P., Eng, Hall and Austin, JJ., concur. *** Wang v. Dailly News, L.P. 933 N.Y.S.2d 888 (App. Div. 2d Dep‘t 2011) On October 13, 2008, at approximately 3:00 a.m., the plaintiff was operating his motor vehicle in the right lane of the Brooklyn-bound side of the Manhattan Bridge. The plaintiff alleged that a truck owned by the defendant Dailly News, L.P., and operated by the defendant Giuseppi Amato, which was traveling in the left lane of the Brooklyn-bound side of the Manhattan Bridge directly adjacent to the plaintiff‘s vehicle, crossed the line dividing the two lanes of traffic into the right lane, striking the plaintiff‘s vehicle. After issue was joined and discovery was completed, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court denied the motion. We affirm. The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting admissible evidence that Amato made an unsafe lane change in violation of Vehicle and Traffic Law § 1128(a). The burden then shifted to the defendants to raise a triable issue of fact (see Harrison v. Bailey, 79 A.D.3d 811, 914 N.Y.S.2d 181 [2010]). In opposition to the plaintiff‘s motion, the defendants submitted ... (truncated) --- The user has provided three partial opinions on three pages. The core task is to extract the **MAIN** opinion—the one with a complete case caption and full body. Page 1 starts mid-opinion (Murphy v. Bayer Healthcare). Page 1 ends with a start of a new case: David Marom, Respondent, v Thomas P Anselmo ... [933 NYS2d 744] Page 2 and 3 contain the full text of the Marom v. Anselmo case. Page 3 ends with a start of another case: Meng Wai Wang v Dailly News ... [933 NYS2d 888] The main opinion to convert is **Marom v. Anselmo**. Metadata for Marom v. Anselmo: - Name: David Marom, Respondent, v Thomas P Anselmo, Doing Business as Law Offices of Thomas P. Anselmo, Appellant. - Short Name: Marom v. Anselmo - Court: N.Y. App. Div., 2nd Dept (Inferred from context and other citations like AD3d). The header just says 622, 623, 624. Looking at the citations “73 AD3d 1108” etc, this is the Supreme Court of the State of New York, Appellate Division, Second Department. - Date: [933 NYS2d 744] is the reporter cite. The exact date isn‘t visible on the snippet, but the OCR for Wang (next case) says 2011 in the prior case history. I will look for clues. The citations in the text are as recent as 2011. - Citation: 933 N.Y.S.2d 744. - Docket: Not explicitly provided in the text. - Judges: Dillon, J.P., Eng, Hall and Austin, JJ., concur. Let‘s format the HTML for Marom v. Anselmo. Page markers: Page 1 ends with the caption. Page 2 starts with “On a motion to dismiss...“. Page 3 starts with “that no significant dispute...“. Actually, the caption is at the bottom of 622. Page 623 starts the opinion body. Page 624 continues and finishes it. Wait, looking at the screenshots: Page 1 (622) bottom: Caption for Marom. Page 2 (623) top: “On a motion to dismiss...” Page 3 (624) top: “that no significant dispute...” and then the end of the opinion. So: After details: (caption is there) Then before “On a motion...” Then before “that no significant dispute...” Laws to tag: - CPLR 3211 (a) (7) -> N.Y. C.P.L.R. 3211(a)(7) - CPLR 3211 (a) (1) -> N.Y. C.P.L.R. 3211(a)(1) Citations to tag: - Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 - Leon v Martinez, 84 NY2d 83 - Prestige Caterers, Inc. v Siegel, 88 AD3d 679 - Peery v United Capital Corp., 84 AD3d 1201 - Rietschel v Maimonides Med. Ctr., 83 AD3d 810 - Guggenheimer v Ginzburg, 43 NY2d 268 - Cog-Net Bldg. Corp. v Travelers Indem. Co., 86 AD3d 585 - Garten v Shearman & Sterling LLP, 52 AD3d 207 - Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 - Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300 - Schetty v Target Corp., 88 AD3d 984 - Kram Knarf, LLC v Djonovic, 74 AD3d 628 Let‘s begin. Note on hyphenation: “mate-rial” -> “material“, “re-cover” -> “recover“, “al-legedly” -> “allegedly“, “eviden-tiary” -> “evidentiary“, “pur-suant” -> “pursuant“. Note on Case Information: Case Name: DAVID MAROM, Respondent, v THOMAS P. ANSELMO, Doing Business as LAW OFFICES OF THOMAS P. ANSELMO, Appellant. Short Name: Marom v. Anselmo. The first page of the PDF is 622. The snippet on 622 ends with the caption. I‘ll put the caption content in the details and start the body with page 623. Actually, the instruction says “Include ALL content before the main opinion text“. The caption is before the main opinion text. Wait, the caption for Marom is at the bottom of page 622. The opinion for Marom starts on page 623. So: Details (Empty or just the caption? Usually, captions go in details and the opinion starts with the judge/intro.) The caption is on 622.

On a motion to dismiss...

Let‘s check the start of 623. It starts directly with “On a motion to dismiss“. No Judge name at the start. The end of the opinion has the judges. Wait, looking at the snippet for page 622, the text above the caption is the end of the Murphy case. The caption for Marom is: “David Marom, Respondent, v Thomas P Anselmo, Doing Business as Law Offices of Thomas P. Anselmo, Appellant. [933 NYS2d 744]--” I‘ll put the citation in the details. One more thing: Multi-opinion documents. “Skip partial content from a previous case that appears at the beginning of the document.” I will skip the “The nature and degree...” text from 622. Start with Marom. Citations: - Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002] - Leon v Martinez, 84 NY2d 83, 87 [1994] - Prestige Caterers, Inc. v Siegel, 88 AD3d 679 [2011] - Peery v United Capital Corp., 84 AD3d 1201 [2011] - Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 810 [2011] - Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977] - Cog-Net Bldg. Corp. v Travelers Indem. Co., 86 AD3d 585, 586 [2011] - Garten v Shearman & Sterling LLP, 52 AD3d 207 [2008] - Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] - Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303-304 [2001] - Schetty v Target Corp., 88 AD3d 984 [2011] - Kram Knarf, LLC v Djonovic, 74 AD3d 628 [2010] Law: - CPLR 3211 (a) (7) -> N.Y. C.P.L.R. § 3211(a)(7) - CPLR 3211 (a) (1) -> N.Y. C.P.L.R. § 3211(a)(1) Jurisdiction: NY. Pagination: 622, 623, 624. HTML Construction:

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Prestige Caterers, Inc. v Siegel, 88 AD3d 679 [2011]; Peery v United Capital Corp., 84 AD3d 1201 [2011]). However, where, as here, evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, “the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 810 [2011]; see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]; Cog-Net Bldg. Corp. v Travelers Indem. Co., 86 AD3d 585, 586 [2011]).

Here, the amended complaint stated a cause of action to recover damages for legal malpractice by alleging that the defendant attorney failed to structure the plaintiff‘s $500,000 investment in a condominium construction project as a loan secured by a first mortgage on the condominium property as the defendant had agreed to do, and that, but for this failure, the plaintiff would have been able to recover his investment when the project was abandoned (see Garten v Shearman & Sterling LLP, 52 AD3d 207 [2008]; see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303-304 [2001]). Moreover, the evidentiary proof submitted by the defendant in support of his motion, which consisted primarily of a limited liability company operating agreement signed by the plaintiff three days after the closing on the condominium property, and a loan resolution also allegedly signed after the closing, did not demonstrate that a material fact alleged in the complaint was not a fact at all, and that no significant dispute existed regarding it. Accordingly, the Supreme Court properly denied that branch of the defendant‘s motion which was to dismiss the amended complaint pursuant to CPLR 3211 (a) (7).

Further, since the documentary evidence submitted by the defendant did not utterly refute the plaintiff‘s factual allegations, and conclusively establish a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d at 88; Schetty v Target Corp., 88 AD3d 984 [2011]; Cog-Net Bldg. Corp. v Travelers Indem. Co., 86 AD3d at 585-586), the Supreme Court properly denied that branch of the defendant‘s motion which was to dismiss the amended complaint pursuant to CPLR 3211 (a) (1) (see Kram Knarf, LLC v Djonovic, 74 AD3d 628 [2010]; Garten v Shearman & Sterling LLP, 52 AD3d at 207). Dillon, J.P., Eng, Hall and Austin, JJ., concur.

[Prior Case History: 2011 NY Slip Op 30756(U).]

Wait, the “Rivera, J.P., ...” text is from the previous case. The Marom judges are “Dillon, J.P., Eng, Hall and Austin, JJ., concur.” Check OCR for 624. “that no significant dispute existed regarding it. Accordingly, the Supreme Court properly denied that branch of the defendant‘s motion which was to dismiss the amended complaint pursuant to CPLR 3211 (a) (7). Further, ... Dillon, J.P., Eng, Hall and Austin, JJ., concur. [Prior Case History: 2011 NY Slip Op 30756(U).]” Everything looks correct. One detail: “[933 NYS2d 744]--” at end of Marom caption. The next caption: “Meng Wai Wang, Appellant, v Dailly News, L.P., et al., Respondents. [933 NYS2d 888]--” I‘ll finalize the HTML.

Case Details

Case Name: Marom v. Anselmo

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Dec 6, 2011

Citations: 90 A.D.3d 622; 933 N.Y.2d 744

Court Abbreviation: N.Y. App. Div.