SEXSTONE v. AMATO (2004)

 Contrary to defendant's contention, Supreme Court did not err in granting plaintiff's motion for summary judgment on the complaint seeking the return of a $17,000 ring pursuant to Civil Rights Law § 80-b.   Although “successive summary judgment motions ‘should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause’ ” (Town of Wilson v. Town of Newfane, 192 A.D.2d 1095, 1095, 596 N.Y.S.2d 266, quoting Marine Midland Bank v. Fisher, 85 A.D.2d 905, 906, 447 N.Y.S.2d 186;  see Farrell v. Okeic, 303 A.D.2d 957, 755 N.Y.S.2d 677), defendant failed to raise that objection before the court (see Graney Dev. Corp. v. Taksen, 62 A.D.2d 1148, 1149, 404 N.Y.S.2d 180).   In any event, “[a]s an appellate court, we are not precluded from addressing the merits of the motion” (McIvor v. Di Benedetto, 121 A.D.2d 519, 522, 503 N.Y.S.2d 836;  see Wenger v. Goodell, 288 A.D.2d 815, 816, 733 N.Y.S.2d 523, lv. denied 98 N.Y.2d 605, 746 N.Y.S.2d 279, 773 N.E.2d 1017).   We also conclude that the court did not abuse its discretion in entertaining plaintiff's motion even though it was filed more than 120 days after the filing of the note of issue (see Vitez v. Shelton, 6 A.D.3d 1180, 776 N.Y.S.2d 422;  see also Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 128-129, 711 N.Y.S.2d 131, 733 N.E.2d 203;  Welch Foods v. Wilson, 277 A.D.2d 882, 883, 716 N.Y.S.2d 243).

 “Plaintiff's proof submitted in support of his motion demonstrated that he gave the engagement ring to defendant in contemplation of their marriage and was entitled to its return or its value upon the termination of their engagement” (Becker v. Mix, 279 A.D.2d 773, 774, 718 N.Y.S.2d 498;  see Civil Rights Law § 80-b;  Gaden v. Gaden, 29 N.Y.2d 80, 323 N.Y.S.2d 955, 272 N.E.2d 471;  Leshowitz v. Conklin, 245 A.D.2d 343, 665 N.Y.S.2d 593).   The conclusory assertions of defendant that she accepted the ring for her birthday and never intended to marry plaintiff are “patently insufficient to overcome plaintiff's proof” (Becker, 279 A.D.2d at 774, 718 N.Y.S.2d 498).   Furthermore, the testimony of defendant at her deposition that the ring was not “in [her] presence at the present time” and was “not in [her] possession at the present time” was also insufficient to defeat plaintiff's motion for summary judgment (see Leshowitz, 245 A.D.2d at 344, 665 N.Y.S.2d 593), particularly in view of her further testimony that she could not and would not discuss the matter with plaintiff's attorney.   When pressed to answer the question of plaintiff's attorney concerning the location of the ring, defendant testified that she returned the ring to plaintiff on the day that he gave it to her.   That testimony, made months after commencement of the action, is patently false and incredible as a matter of law.   While we agree with the general premise that credibility is an issue that should be left to a fact finder at trial, “there are of course instances where credibility is properly determined as a matter of law” (Rickert v. Travelers Ins. Co., 159 A.D.2d 758, 759, 551 N.Y.S.2d 985, lv. denied 76 N.Y.2d 701, 557 N.Y.S.2d 878, 557 N.E.2d 114;  see Home Mut. Ins. Co. v. Lapi, 192 A.D.2d 927, 929, 596 N.Y.S.2d 885).   This Court is not “required to shut its eyes to the patent falsity of a defense” (MRI Broadway Rental v. United States Min. Prods. Co., 242 A.D.2d 440, 443, 662 N.Y.S.2d 114, affd. 92 N.Y.2d 421, 681 N.Y.S.2d 783, 704 N.E.2d 550;  see also Glick & Dolleck v. Tri-Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 239 N.E.2d 725).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: