Opinion
Index No. 513915/2023
05-10-2024
2182 Flatbush LLC, Plaintiff, v. Iftikhar Ahmed and ATIA SHAHNAZ, Defendants.
Unpublished Opinion
Aaron D. Maslow, J.
The following numbered papers were used on this motion, which was determined on submission pursuant to IAS Part 2 Rules, Part I, Subpart C, § 6: NYSCEF Document Numbers 7-21.
Upon the foregoing papers and due deliberation having been had, it is hereby ORDERED as follows:
In this action for unpaid rent, the motion by Plaintiff against Defendant Iftiqhar Ahmed, as a guarantor on a lease, seeking (1) summary judgment, (2) a judgment of $49,824.16, (3) the striking of said Defendant's affirmative defenses, (4) attorneys' fees, and (5) other, further relief, is determined as follows.
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]).
Plaintiff failed to attach a copy of said Defendant's answer, although on a motion for summary judgment such is required (see CPLR 3212 [b]). While Mew Equity, LLC v Sutton Land Servs., LLC (144 A.D.3d 874, 877 [2d Dept 2016]), held that "the court should not have raised the issue on the Mew plaintiffs' behalf," the fact pattern here is different. In Mew Equity, LLC, the unprovided answers were those of defendants other than the moving defendant. Here, Plaintiff seeks summary judgment against a named Defendant. In order to properly adjudicate the said motion, the Court needs to have the said Defendant's answer before it on the record. The Court would need to compare the complaint's allegations versus the responses in the answer to see which, if any were admitted. If they were denied, then the Court needs to determine if the affidavit and/or affirmation submitted by Plaintiff, as the movant, establishes entitled to judgment as a matter of law. The default requirement that a summary judgment motion be supported inter alia by copies of the pleadings must apply in the present situation (see Freeman v Easy Glider Roller Rink, Inc., 114 A.D.2d 436 [2d Dept 1985], citing S.J. Capelin Ass., Inc v Globe Mfg. Corp., 34 N.Y.2d 338 [1974]; Wider v Heller, 24 A.D.3d 433 [2d Dept 2005]; Stahlman v NYU Langone Health System, 63 Misc.3d 496 [Sup Ct, Kings County 2019]). After all, "It is well established that summary judgment may not be granted whenever the pleadings raise clear, well-defined and genuine issues" (Falk v Goodman, 7 N.Y.2d 87, 91 [1959]).
Since Plaintiff failed to make out its prima facie case in support of its motion, it irrelevant that the Defendant against whom the motion was made did not submit opposition papers (see Smalls v AJI Industries, Inc., 10 N.Y.3d 733 [2008]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).
Further, since Plaintiff's motion seeks to strike said Defendant's affirmative defenses, the Court needs to have the answer before it in the record. The Court needs to peruse the answer to see whether Plaintiff's arguments for striking specific affirmative defenses are meritorious.
It is not the responsibility of the Court to seek and search for the electronically-filed answer in the electronic case folder for this action in a location outside the motion papers. "Just as it is not the court's burden of undertaking the toilsome task of reading through pages of testimony to find support for a party's position without citation to particular lines or pages (see Unitrin Advantage Ins. Co. v Advanced Orthopedics and Joint Preservation P.C., 2018 NY Slip Op. 33296(U) *6-7 [Sup Ct, NY County 2018]), neither is it the court's responsibility to fish around in NYSCEF to locate referenced documents" (Brick&Mortar LLC v Momo Sushi Inc., 79 Misc.3d 1239 [A], 2023 NY Slip Op 50838[U], *3 [Sup Ct, Kings County 2023]). While a court possesses discretion to view an electronically filed answer (see Sensible Choice Contracting, LLC v Rodgers, 164 A.D.3d 705 [2d Dept 2018] [answer submitted by non-moving party]), it remains a party's responsibility to facilitate resolution of its summary judgment motion by compliance with CPLR 3212 requirements.
Since no judgment is being awarded to Plaintiff, that branch of its motion seeking attorneys' fees is academic.
Accordingly, the within motion is DENIED without prejudice to renew upon proper papers (see Wider v Heller, 24 A.D.3d 433).