Gilbert v. Meyer

• Decision Date: 11 November 1971
• Citation: 37 A.D.2d 938,325 N.Y.S.2d 881
• Parties: Edward M. GILBERT, Plaintiff-Appellant, v. Andre MEYER and Lazard Freres, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 881

325 N.Y.S.2d 881

37 A.D.2d 938

Edward M. GILBERT, Plaintiff-Appellant, v. Andre MEYER and Lazard Freres, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Nov. 11, 1971.

L. V. Kelly, New York City, for plaintiff-appellant.

S. H. Rifkind, New York City, for defendants-respondents.

Before STEVENS, P.J., and CAPOZZOLI, McGIVERN, STEUER and TILZER, JJ.

PER CURIAM.

Resettled order, Supreme Court, New York County, entered March 2, 1971, granting defendants' motion for summary judgment pursuant to CPLR 3212(b) on the ground that the cause of action in plaintiff's complaint was not timely brought, is affirmed. Defendants-respondents shall recover of appellant $50 costs and disbursements of this appeal. The appeal from the order entered February 2, 1971, is dismissed.

We agree with the comprehensive opinion of Special Term but would add the following. Contrary to what is implied in the opinion of the dissenting Justice, our affirmance of the order of Special Term is not based upon an adherence to any technical requirements as to the form of pleading. Rather, we affirm because upon the motion for summary judgment plaintiff completely failed to show any facts indicating that an equitable cause of action exists. Hence, it is quite clear that the action is time barred.

Nor do we believe that it was necessary to hold the motion in abeyance until plaintiff had an opportunity to complete pre-trial proceedings, either with respect to allowing his own attorney to ask him any rehabilitating questions or with respect to the issue of when his cause of action arose. As to the former, plaintiff was free upon the summary judgment motion to offer whatever he chose to refute or explain any statements he had made upon his examination before trial. As to the latter, we do not believe that there is any issue as to when the cause of action arose. The plaintiff set forth clearly that whatever agreement he may have had with defendants was breached in May and June of 1962. The reference to the 1964 Walter-Celotex merger was not shown to be related to the parties' agreement. And even if the Walter-Celotex merger has some relationship to the parties' agreement, that could only affect plaintiff's damages. A new cause of action did not then arise.

Finally, the dissent urges that summary judgment should not have been granted prior to discovery proceedings of the defendant Meyer on the crucial question of his absence from the State and Thus, the applicability of CPLR 207 tolling the statute. Initially, we note that this point is not even raised upon appeal. Nevertheless, the point was properly disposed of by Special Term as follows:

'Finally, plaintiff, without giving any dates, places or particulars of any kind, makes the bald assertion upon information and belief that defendant Meyer * * * has been out of the State for several periods in excess of four months over the last ten years. Of course, he is attempting to invoke the tolling provision of CPLR 207 * * *. This contention cannot be taken seriously, particularly in light of the fact that plaintiff did not take any steps to commence this action until after the statute had expired. Moreover, defendant Meyer being a resident of the State, the section does not apply, since jurisdiction over his person could have been obtained during his absence, if any, from the State without personal delivery of the summons to him within the State (see CPLR 207(3), 308, 313).'

All concur except McGIVERN, J., who dissents in the following memorandum:

Although I too have many reservations as to the plaintiff's ultimate ability to spell out an equitable cause of action, I do not think he should be the victim of 'judicial lightning' before he has had an opportunity to complete his pre-trial and discovery procedures, in accordance with our commonly accepted precedents and precepts. 'We also believe that under all the circumstances disclosed, the plaintiffs ought to be allowed an opportunity to develop the facts Through an examination before trial before summary judgment is granted against them (see Lori-Jay Knitting Mills v. Columbia Knitting Mills, 21 Misc.2d 537, 195 N.Y.S.2d 728; Bartels v. Rubel Corp., 205 Misc. 673, 129 N.Y.S.2d 355).' Mosher et al. v. Rowland Distributors, Inc., 15 A.D.2d 934, 225 N.Y.S.2d 883. (Italics mine.) (See Carmody Wait 2d Vol. 6, § 39:30).

As I understand it, however, when the subject motion was brought on, the plaintiff was still being examined by defendant's attorney; his own attorney had not had the opportunity to ask him one rehabilitating question and he had not yet asked one question of the defendants on some matters allegedly within their exclusive possession. But, as the Court of Appeals said in Procter & Gamble Distributing Co. v. Lawrence American Field Ware. Corp., 16 N.Y.2d 344, 362, 266 N.Y.S.2d 785, 799, 213 N.E.2d 873, 883:

'We have held that summary judgment is not justified where there are likely to be defenses that depend upon knowledge in the possession of the party moving for judgment, Which might well be disclosed by cross-examination or examination before trial (italics mine) (Kamen v. Metropolitan Life Ins. Co., 6 A.D.2d 406, 178 N.Y.S.2d 449, affd. 6 N.Y.2d 737, 185 N.Y.S.2d 819, 158 N.E.2d 510; Suslensky v. Metropolitan Life Ins. Co., 180 Misc. 624, 43 N.Y.S.2d 144, affd. 267 App.Div. 812, 46 N.Y.S.2d 888; West Virginia Pulp & Paper Co. v. Merchants Mut. Ins. Co., 10 A.D.2d 451, 201 N.Y.S.2d 314; 5 Carmody-Wait, New York Practice, p. 145).' (Italics mine)

Or, as was also said in Crocker-Citizens National Bank v. L.N. Magazine Distributors, Inc., 26 A.D.2d 667, 272 N.Y.S.2d 436:

'Moreover, the rule is here applicable that summary judgment should not be granted if the facts upon which the motion is predicated are exclusively within the knowledge of the moving party or clearly not within the knowledge of the opponent (Franklin Nat. Bank of Long Island v. De Giacomo, 20 A.D.2d 797, 248 N.Y.S.2d 586; cf. CPLR 3212, subd. (f)).'

Moreover, since CPLR 207, subd. 3, to the extent it may be applicable, was not effective until September 1, 1963, the facts relative to Meyer should not have been cut off. See, National Telefilm Associates, Inc. v. Ostrow, 48 Misc.2d 58, 264 N.Y.S.2d 279, aff'd 24 A.D.2d 848, 264 N.Y.S.2d 349; also, CPLR 218(b) and Beresovski v. Warszawski, 28 N.Y.2d 419, 322 N.Y.S.2d 673, 271 N.E.2d 520 (May 1971). Whatever these facts were, they were...