Tray-Wrap, Inc. v. Pacific Growers, Ltd.

Appellate Division of the Supreme Court of New York

Tray-Wrap, Inc. v. Pacific Growers, Ltd.

61 A.D.3d 545, 877 N.Y.S.2d 71

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 21, 2009

StatusPublished

Cited by1 cases

This text of 61 A.D.3d 545 (Tray-Wrap, Inc. v. Pacific Growers, Ltd.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tray-Wrap, Inc. v. Pacific Growers, Ltd., 61 A.D.3d 545, 877 N.Y.S.2d 71 (N.Y. Ct. App. 2009).

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Opinion

Orders, Supreme Court, Bronx County (Nelson S. Roman, J.), entered on or about February 11, 2008, and same court (Stanley Green, J.), entered on or about March 7, 2008, which granted defendants’ respective motions for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff asserts that the instant motions should be denied as untimely because they were made without judicial leave more than 120 days after the filing of the note of issue (see CPLR 3212 [a]). It is undisputed that defendants previously made [546]*546timely motions for summary judgment. By decision dated February 6, 2007, Supreme Court denied the same, without prejudice to resubmission upon papers which were to include copies of the pleadings. Such motions were made within a reasonable time thereafter. Accordingly, the instant motions, although untimely, were made with leave of the court upon a showing of good cause pursuant to the statute.

Plaintiff’s claim for malicious prosecution was properly dismissed for the same reasons stated by this Court in G & T Term. Packaging Co., Inc. v Western Growers Assn. (56 AD3d 266 [2008]). Indeed, this very plaintiff made similar arguments based on materially indistinguishable facts. Accordingly, plaintiff’s claim is barred by res judicata/collateral estoppel (Matter of Reilly v Reid, 45 NY2d 24 [1978]; Smith v Russell Sage Coll., 54 NY2d 185 [1981]). Plaintiffs claim for abuse of process was also properly dismissed for failure to show that the complaint in the underlying proceeding pursuant to the Perishable Agricultural Commodities Act, 1930 (7 USC § 499a et seq.) was filed without justification and with intent to do harm, or that the process was in any way perverted (see Curiano v Suozzi, 63 NY2d 113, 116 [1984]; Williams v Williams, 23 NY2d 592, 596 [1969]). Concur—Andrias, J.P, Nardelli, McGuire, Acosta and DeGrasse, JJ. [See 18 Misc 3d 1122(A), 2008 NY Slip Op 50156(U).]

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Orders, Supreme Court, Bronx County (Nelson S. Roman, J.), entered on or about February 11, 2008, and same court (Stanley Green, J.), entered on or about March 7, 2008, which granted defendants’ respective motions for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff asserts that the instant motions should be denied as untimely because they were made without judicial leave more than 120 days after the filing of the note of issue (see CPLR 3212 [a]). It is undisputed that defendants previously made [546]*546timely motions for summary judgment. By decision dated February 6, 2007, Supreme Court denied the same, without prejudice to resubmission upon papers which were to include copies of the pleadings. Such motions were made within a reasonable time thereafter. Accordingly, the instant motions, although untimely, were made with leave of the court upon a showing of good cause pursuant to the statute.

Plaintiff’s claim for malicious prosecution was properly dismissed for the same reasons stated by this Court in G & T Term. Packaging Co., Inc. v Western Growers Assn. (56 AD3d 266 [2008]). Indeed, this very plaintiff made similar arguments based on materially indistinguishable facts. Accordingly, plaintiff’s claim is barred by res judicata/collateral estoppel (Matter of Reilly v Reid, 45 NY2d 24 [1978]; Smith v Russell Sage Coll., 54 NY2d 185 [1981]). Plaintiffs claim for abuse of process was also properly dismissed for failure to show that the complaint in the underlying proceeding pursuant to the Perishable Agricultural Commodities Act, 1930 (7 USC § 499a et seq.) was filed without justification and with intent to do harm, or that the process was in any way perverted (see Curiano v Suozzi, 63 NY2d 113, 116 [1984]; Williams v Williams, 23 NY2d 592, 596 [1969]). Concur—Andrias, J.P, Nardelli, McGuire, Acosta and DeGrasse, JJ. [See 18 Misc 3d 1122(A), 2008 NY Slip Op 50156(U).]

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Bluebook (online)

61 A.D.3d 545, 877 N.Y.S.2d 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tray-wrap-inc-v-pacific-growers-ltd-nyappdiv-2009.

Opinion

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