Ambulatory Surgery Center v. Helpers of God's Precious Infants, Inc.

283 A.D.2d 528, 725 N.Y.S.2d 65, 2001 N.Y. App. Div. LEXIS 5447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 2001
• Status: Published

Opinions

—Motion by the appellants-respondents for leave to reargue a decision and order in the above-entitled action dated August 21, 2000 [275 AD2d 381], which determined appeals from two orders of the Supreme Court, Kings County, entered February 25, 1999, and July 16, 1999, respectively, or for leave to appeal to the Court of Appeals from this Court’s decision and order.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the branch of the motion which is for leave to appeal to the Court of Appeals is denied; and it is further,

Ordered that the branch of the motion which is for leave to reargue is granted; and it is further,

Ordered that on reargument, the second, third, fourth, seventh, eighth, and ninth paragraphs of the decision and order dated August 21, 2000, in the above-entitled action are recalled and vacated, and the following separate decision and order is hereby issued:

In an action, inter alia, to enjoin the defendants from, among other things, interfering with access to the plaintiffs’ premises, the defendants Helpers of God’s Precious Infants, Inc., Philip Reilly, Dorothy Rothar, Michael Marino, and Rose Diaz appeal from (1) so much of an order of the Supreme Court, Kings County (Jackson, J.), entered February 25, 1999, as denied their cross motion for summary judgment dismissing the first, second, third, and fifth causes of action in the complaint, and (2) an order of the same court dated July 16, 1999, which denied their motion for renewal, and the plaintiffs cross-appeal from so much of the order entered February 25, 1999, as granted the cross motion of the defendants Thomas V. Daily and Life Center of N. Y., Inc., for summary judgment dismissing the first, second, third, and fifth causes of action insofar as asserted against them. Presiding Justice Bracken has been substituted for former Presiding Justice Mangano and Justice McGinity has been substituted for former Justice Sullivan (see, 22 NYCRR 670.1 [c]).

Ordered that the order entered February 25, 1999, is modified, on the law, by deleting the provision thereof denying that branch of the cross motion of the defendants Helpers of God’s Precious Infants, Inc., Philip J. Reilly, Dorothy Rothar, Michael Marino, and Rose Diaz which was for summary judgment dismissing the first, second, third, and fifth causes of action insofar as asserted against Rose Diaz, and substituting therefor a provision granting that branch of that cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from; and it is further,

Ordered that the order dated July 16, 1999, is reversed, the motion for renewal is granted, and, upon renewal, the prior determination is adhered to; and it is further,

Ordered that the appellants-respondents and the respondents appearing separately and filing separate briefs are awarded one bill of costs payable by the plaintiffs.

In opposition to the various cross motions in which certain of the defendants established, prima facie, their entitlement to judgment as a matter of law, the plaintiffs’ counsel, Edward Land, submitted, inter alia, a number of purported affidavits which he signed on behalf of the alleged affiants and then notarized, falsely representing that the alleged affiants had signed them in his presence. Only after some of the purported affidavits were challenged by the defendants in their reply papers did the plaintiffs’ counsel admit his misrepresentations. This conduct was wholly improper (see, Executive Law § 135-a [2]; § 137; Reboul, MacMurray, Hewitt, Maynard & Kristol v Quasha, 90 AD2d 466; Matter of Napolis, 169 App Div 469, 471), and the purported affidavits, which had no probative value, should not have been considered by the Supreme Court in its determination of the cross motions (see, Buonaiuto v Shulberg, 254 AD2d 384). For the same reason, the defendants’ motion for renewal, based upon the discovery of additional improper signatures and false notarizations, should have been granted, and the additional improper affidavits should have been eliminated from consideration as well.

Nevertheless, the plaintiffs proffered other, proper evidence to show the existence of triable issues of fact regarding the activities engaged in by the defendants Helpers of God’s Precious Infants, Inc., Philip Reilly, Dorothy Rothar, and Michael Marino. Accordingly, we affirm the denial of those branches of the separate cross motions of those defendants which was for summary judgment insofar as asserted against them. However, the defendants Thomas V. Daily, Life Center of N. Y., Inc., and Rose Diaz demonstrated their entitlement to judgment in their favor as a matter of law dismissing the first, second, third, and fifth causes of action insofar as asserted against them (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). The plaintiffs failed to show the existence of any triable issue of fact regarding these defendants. Bracken, P. J., H. Miller and Feuerstein, JJ., concur.