Moffett v. Gerardi

28 Citing cases

  1. Five Corners Car Wash, Inc. v. Minrod Realty Corp.

    134 A.D.3d 671 (N.Y. App. Div. 2015)   Cited 11 times

    The only evidence offered by the plaintiff in support of this contention was the deposition testimony of one of its principals, who testified that the defendant's principal drafted the subject lease. However, the defendant's principal had died prior to the commencement of this action and, pursuant to the Dead Man's Statute (see CPLR 4519), it would be improper for the Supreme Court to rely upon personal communications between the plaintiff's principal and the defendant's deceased principal in considering the plaintiff's motion (see Phillips v. Kantor & Co., 31 N.Y.2d 307, 314, 338 N.Y.S.2d 882, 291 N.E.2d 129; Moffett v. Gerardi, 75 A.D.3d 496, 498, 904 N.Y.S.2d 757; Hermann v. Sklover Group, 2 A.D.3d 307, 768 N.Y.S.2d 600). Since the plaintiff failed to establish that the lease was drafted by the defendant, we need not construe ambiguity in the lease language against the defendant (see generally Matter of Cowen & Co. v. Anderson, 76 N.Y.2d 318, 323, 559 N.Y.S.2d 225, 558 N.E.2d 27).

  2. Doviak v. Finkelstein & Partners, LLP

    90 A.D.3d 696 (N.Y. App. Div. 2011)   Cited 62 times

    The appeal from so much of the order entered December 1, 2010, as denied that branch of the plaintiffs' motion which was for leave to reargue their motion for summary judgment must be dismissed, as no appeal lies from an order denying reargument ( see Schiano v. Mijul, Inc., 79 A.D.3d 726, 912 N.Y.S.2d 134; Nicoletti v. City of New York, 77 A.D.3d 715, 716, 909 N.Y.S.2d 117; Weiss v. Deloitte & Touche, LLP, 63 A.D.3d 1045, 1047, 882 N.Y.S.2d 229). In its order entered August 13, 2010, the Supreme Court correctly noted that the plaintiffs failed to submit various witnesses' signature pages or other evidence in support of their motion for summary judgment demonstrating compliance with the requirements of CPLR 3116(a) ( see Marmer v. IF USA Express, Inc., 73 A.D.3d 868, 869, 899 N.Y.S.2d 884; Martinez v. 123–16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 902, 850 N.Y.S.2d 201; compare Moffett v. Gerardi, 75 A.D.3d 496, 498–499, 904 N.Y.S.2d 757). However, since the subject signature pages were submitted by the defendants in support of their cross motion for summary judgment, the Supreme Court properly considered the merits of the plaintiffs' motion.

  3. Alam v. 25 Monroe Place LP

    2022 N.Y. Slip Op. 32015 (N.Y. Sup. Ct. 2022)

    Moreover, the Defendants failed to provide a reasonably excuse for not providing the document in admissible form. See Moffett v. Gerardi, 75 A.D.3d 496!, 498, 904 N.Y.S.2d 757 [2d Dept 2010]. In fact, the Defendants do not even acknowledge the issue.

  4. Delishi v. Property Owner USA LLC

    31 Misc. 3d 661 (N.Y. Sup. Ct. 2011)   Cited 2 times

    These 17 transcripts are clearly inadmissible as evidence in support of summary judgment. ( See Moffett v Gerardi, 75 AD3d 496, 498 [2d Dept 2010]; Marmer v IF USA Express, Inc., 73 AD3d 868, 869 [2d Dept 2010]; Myers v Polytechnic Preparatory Country Day School, 50 AD3d 868, 869 [2d Dept 2008]; Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2d Dept 2008]; McDonald v Mauss, 38 AD3d 727, 728 [2d Dept 2007]; Scotto v Marra, 23 AD3d 543, 544 [2d Dept 2005]; Santos v Intown Assoc, 17 AD3d 564, 565 [2d Dept 2005]; Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2d Dept 2006]; Lalli v Abe, 234 AD2d 346, 347 [2d Dept 1996].) Nor may any of these transcripts be considered in opposition in the absence of an explanation for their not being in admissible form.

  5. Delishi v. Prop. Owner (usa) Llc

    31 Misc. 3d 661 (N.Y. Sup. Ct. 2011)   Cited 1 times

    These seventeen transcripts are clearly inadmissible as evidence in support of summary judgment. ( See Moffett v. Gerardi, 75 A.D.3d 496, 498, 904 N.Y.S.2d 757 [2d Dept. 2010]; Marmer v. IF USAExpress, Inc., 73 A.D.3d 868, 869, 899 N.Y.S.2d 884 [2d Dept. 2010]; Myers v. Polytechnic Preparatory Country Day School, 50 A.D.3d 868, 869, 855 N.Y.S.2d 650 [2d Dept. 2008]; Martinez v. 123–16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 902, 850 N.Y.S.2d 201 [2d Dept. 2008]; McDonald v. Mauss, 38 A.D.3d 727, 728, 832 N.Y.S.2d 291 [2d Dept. 2007]; Scotto v. Marra, 23 A.D.3d 543, 544, 806 N.Y.S.2d 603 [2d Dept. 2005]; Santos v. Intown Assoc., 17 A.D.3d 564, 564, 793 N.Y.S.2d 477 [2d Dept. 2005]; Pina v. Flik Intl. Corp., 25 A.D.3d 772, 773, 808 N.Y.S.2d 752 [2d Dept. 2006]; Lalli v. Abe, 234 A.D.2d 346, 347, 650 N.Y.S.2d 313 [2d Dept. 1996].) Nor may any of these transcripts be considered in opposition in the absence of an explanation for their not being in admissible form.

  6. Ortiz v. Eldert 294

    223 A.D.3d 911 (N.Y. App. Div. 2024)

    [1, 2] "To obtain summary judgment in an action to quiet title pursuant to RPAPL article 15, ‘the movant must establish, prima facie, that it holds title, or that the nonmovant’s title claim is without merit’ " (1259 Lincoln Place Corp. v. Bank of N.Y., 159 A.D.3d 1004, 1005, 74 N.Y.S.3d 575, quoting White Sands Motel Holding Corp. v. Trustees of Freeholders & Commonalty of Town of E. Hampton, 142 A.D.3d 1073, 1074, 37 N.Y.S.3d 583). Here, although the defendant met its prima facie burden by submitting, inter alia, a duly executed and acknowledged deed, which was evidence that the plaintiff conveyed his ownership interest in the property to the defendant, and an affidavit of the defendant’s principal explaining the circumstances surrounding how the defendant obtained the deed to the property (see 702 DeKalb Residence, LLC v. SSLiberty, Inc., 209 A.D.3d 937, 938, 177 N.Y.S.3d 292; Moffett v. Gerardi, 75 A.D.3d 496, 498, 904 N.Y.S.2d 757; Beshara v. Beshara, 51 A.D.3d 837, 838–839, 858 N.Y.S.2d 351), in opposition, the plaintiff raised a triable issue of fact related to the validity of that deed (see Coke-Holmes v. Holsey Holdings, LLC, 189 A.D.3d 1162, 1164, 139 N.Y.S.3d 227; First Natl. Bank of Nev. v. Williams, 74 A.D.3d 740, 741, 904 N.Y.S.2d 707). The defendant’s remaining contention is without merit.

  7. Ortiz v. Eldert 294, LLC

    2024 N.Y. Slip Op. 429 (N.Y. App. Div. 2024)   Cited 1 times

    "To obtain summary judgment in an action to quiet title pursuant to RPAPL article 15, 'the movant must establish, prima facie, that it holds title, or that the nonmovant's title claim is without merit'" (1259 Lincoln Place Corp. v Bank of N.Y., 159 A.D.3d 1004, 1005, quoting White Sands Motel Holding Corp. v Trustees of Freeholders & Commonalty of Town of E. Hampton, 142 A.D.3d 1073, 1074). Here, although the defendant met its prima facie burden by submitting, inter alia, a duly executed and acknowledged deed, which was evidence that the plaintiff conveyed his ownership interest in the property to the defendant, and an affidavit of the defendant's principal explaining the circumstances surrounding how the defendant obtained the deed to the property (see 702 DeKalb Residence, LLC v SSLiberty, Inc., 209 A.D.3d 937, 938; Moffett v Gerardi, 75 A.D.3d 496, 498; Beshara v Beshara, 51 A.D.3d 837, 838-839), in opposition, the plaintiff raised a triable issue of fact related to the validity of that deed (see Coke-Holmes v Holsey Holdings, LLC, 189 A.D.3d 1162, 1164; First Natl. Bank of Nev. v Williams, 74 A.D.3d 740, 741).

  8. Joan Oro v. Figeroa

    2022 N.Y. Slip Op. 5327 (N.Y. App. Div. 2022)

    Here, the plaintiff met her prima facie burden by submitting, inter alia, estate documents and the deeds in her chain of title demonstrating that she became the sole owner of the property in 1990. The plaintiff's submissions included copies of the 1950 documents and the 1952 deed which contained notarized certificates of acknowledgment (see Bank of N.Y. Mellon v West, 183 A.D.3d at 684; Moffett v Gerardi, 75 A.D.3d 496, 498; Beshara v Beshara, 51 A.D.3d at 838-839). In opposition, the defendants failed to raise a triable issue of fact.

  9. Oro v. Figeroa

    208 A.D.3d 1338 (N.Y. App. Div. 2022)

    Here, the plaintiff met her prima facie burden by submitting, inter alia, estate documents and the deeds in her chain of title demonstrating that she became the sole owner of the property in 1990. The plaintiff's submissions included copies of the 1950 documents and the 1952 deed which contained notarized certificates of acknowledgment (seeBank of N.Y. Mellon v. West, 183 A.D.3d at 684, 121 N.Y.S.3d 899 ; Moffett v. Gerardi, 75 A.D.3d 496, 498, 904 N.Y.S.2d 757 ; Beshara v. Beshara, 51 A.D.3d at 838–839, 858 N.Y.S.2d 351 ). In opposition, the defendants failed to raise a triable issue of fact.

  10. Pasechnik v. Shporin

    189 A.D.3d 1060 (N.Y. App. Div. 2020)   Cited 3 times

    However, in opposition, the defendant raised triable issues of fact regarding the authenticity of the note and the defendant's signature thereon. Although some of the evidence submitted by the defendant was not in admissible form, under the circumstances of this case, we agree with the Supreme Court's consideration of that evidence (seeMoffett v. Gerardi , 75 A.D.3d 496, 498, 904 N.Y.S.2d 757 ).Accordingly, we agree with the Supreme Court's determination denying the plaintiff's motion for summary judgment on the issue of liability.