Opinion
2022-653 Q C
12-22-2023
Selma Sol Jaramillo TABARES, Appellant, v. Roberto MOZILIO, Lee Hegi, Sued Herein as Lee Hig, Jeffrey H. Roth and 83-10 35th Ave Owner's Corporation, Respondents.
ORDERED that, on the court's own motion, so much of the notice of appeal as is from that part of the order as, sua sponte, dismissed so much of the complaint as was asserted against defendant Jeffrey H. Roth is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c] ); and it is further,
ORDERED that the order is reversed, without costs, the motion by defendants Roberto Mozilio, Lee Hegi, sued herein as Lee Hig, and 83-10 35th Ave Owner's Corporation for summary judgment dismissing so much of the complaint as was asserted against them is denied, the sua sponte dismissal of so much of the complaint as was asserted against defendant Jeffrey H. Roth is vacated, and the complaint is reinstated against all defendants.
In the summons with endorsed complaint in this action dated December 19, 2019, plaintiff states that she seeks to recover the principal sum of $25,000 for "Failure to return property; Failure to return security; Failure to return deposit; Failure to return money." In a motion that was supported only by the attorney's affirmation of Thomas E. Murray III, defendants Robert Mozilio, Lee Hegi, sued herein as Lee Hig, and 83-10 35th Ave Owner's Corporation (collectively "moving defendants") moved for summary judgment dismissing so much of the complaint as was asserted against them. Plaintiff opposed moving defendants’ motion. In reply papers that were supported by an attorney's affirmation and exhibits, among other things, moving defendants argued for the first time that plaintiff's cause of action was barred because it could have been asserted in a 2015 summary proceeding. In an order entered January 28, 2022, the Civil Court granted moving defendants’ motion for summary judgment and ordered the complaint dismissed, thereby also sua sponte dismissing so much of the complaint as was asserted against defendant Jeffrey H. Roth.
At the outset, we note that, in deciding the summary judgment motion (see CPLR 3212 ), the Civil Court stated that it was dismissing the complaint "for failure to state a cause of action" (see CPLR 3211 [a] [7] ). However, the court's analysis did not focus on the adequacy of the complaint but, rather, rested on its findings that moving defendants had, essentially, demonstrated that plaintiff had suffered no damages and that plaintiff had failed to provide sufficient proof to rebut that showing.
To prevail on their summary judgment motion, moving defendants were required to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ; see Vega v Restani Constr. Corp. , 18 NY3d 499, 503 [2012] ; Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Upon a review of the record, we find that the motion should have been denied. The affirmation of attorney Murray, which was not supported by any exhibits or by affidavits by individuals with personal knowledge, was insufficient to demonstrate the absence of any material issues of fact and, thus, was inadequate to support the instant summary judgment motion. Furthermore, to the extent that moving defendants properly presented new arguments in response to arguments plaintiff made in opposition to their motion, they nevertheless failed to eliminate any material issues of fact from the case concerning their alleged failure to return money and property to plaintiff, as was asserted in the endorsed complaint. In view of the foregoing, defendants’ motion for summary judgment should have been denied.
While no appeal lies as of right from the sua sponte portion of the order dismissing so much of the complaint as was asserted against defendant Roth (see CCA 1702 [a] [2] ; Sholes v Meagher , 100 NY2d 333 [2003] ), we deem plaintiff's notice of appeal to be an application for leave to appeal from that portion of the order and grant the application (see CCA 1702 [c] ). As defendant Roth did not move for summary judgment dismissing so much of the complaint as was asserted against him, and there is no indication that he ever appeared in the action, so much of the order as, sua sponte, dismissed so much of the complaint as was asserted against him is vacated.
Finally, we note that the record does not substantiate moving defendants’ claim on appeal that they served and filed notice of entry of the order at issue, and thus does not support their argument that the appeal should be dismissed as untimely pursuant to CPLR 5513.
Accordingly, the order is reversed, the motion by moving defendants for summary judgment dismissing so much of the complaint as was asserted against them is denied, the sua sponte dismissal of so much of the complaint as was asserted against defendant Roth is vacated, and the complaint is reinstated against all defendants.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.