Opinion
525684
07-03-2019
Paul CZAJKA, as District Attorney of Columbia County, Respondent, v. Zhanna PENDELL, Appellant, et al., Defendant.
Zhanna Pendell, Chestertown, appellant pro se. Paul Czajka, District Attorney, Hudson (Trevor O. Flike of counsel), for respondent.
Zhanna Pendell, Chestertown, appellant pro se.
Paul Czajka, District Attorney, Hudson (Trevor O. Flike of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Devine, J. Defendant Perry Pendell (hereinafter Pendell), the former husband of defendant Zhanna Pendell (hereinafter defendant), was convicted in 2014 of numerous crimes relating to his sexual activity with an underage victim and his later effort to have the victim murdered ( People v. Pendell, 164 A.D.3d 1063, 82 N.Y.S.3d 257 [2018], affd 33 N.Y.3d 972, 100 N.Y.S.3d 612, 124 N.E.3d 162 [2019] ). Pendell used two of his vehicles to facilitate the sex crimes, and defendant subsequently acquired title to them. In 2016, plaintiff commenced this action against Pendell and defendant for forfeiture of the vehicles pursuant to CPLR article 13–A. Supreme Court issued an order, entered in December 2016, in which it determined that the papers submitted by Pendell in opposition to the complaint lacked merit, that defendant had defaulted and that plaintiff was entitled to recover the vehicles. After becoming aware that defendant had indeed answered, Supreme Court issued an amended order, entered in January 2017, that dismissed defendant's answer and then awarded summary judgment to plaintiff. Defendant appeals from the amended order.
Pendell separately appealed from Supreme Court's December 2016 order and a May 2017 order but, after he failed to perfect his appeal in a timely manner, we severed his appeal from that of defendant (2019 N.Y. Slip Op. 65362[U], 2019 WL 1237645 [2019] ).
"A court cannot, sua sponte, grant summary judgment in the absence of any CPLR 3212 motion for such relief" ( Berle v. Buckley, 57 A.D.3d 1276, 1277, 869 N.Y.S.2d 679 [2008] [citations omitted]; see Wells Fargo Bank Minn., N.A. v. Garrasi, 80 A.D.3d 1061, 1063, 914 N.Y.S.2d 790 [2011] ; Barrett v. Watkins, 52 A.D.3d 1000, 1002, 860 N.Y.S.2d 246 [2008] ). Supreme Court did not have a motion for summary judgment before it, nor did it treat Pendell's opposition papers as a motion to dismiss that could have been converted into one (see CPLR 3211[c] ). Moreover, although Supreme Court may grant unrequested relief in the absence of "substantial prejudice" to the parties, prejudice is apparent here, as defendant was not made aware "that summary judgment [was] being considered as a remedy" or afforded an opportunity to "develop evidence and offer proof in support of or opposition to the motion" ( Wells Fargo Bank Minn., N.A. v. Garrasi, 80 A.D.3d at 1063, 914 N.Y.S.2d 790 ; see Ressis v. Mactye, 98 A.D.2d 836, 837, 470 N.Y.S.2d 502 [1983] ). Thus, Supreme Court erred in granting summary judgment to plaintiff and in dismissing defendant's answer (see Barrett v. Watkins, 52 A.D.3d at 1002–1003, 860 N.Y.S.2d 246 ; De Pan v. First Natl. Bank of Glens Falls, 98 A.D.2d 885, 886, 470 N.Y.S.2d 869 [1983] ; Ressis v. Mactye, 98 A.D.2d at 837, 470 N.Y.S.2d 502 ; see also Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–430, 654 N.Y.S.2d 335, 676 N.E.2d 1178 [1996] ). Finally, although Supreme Court erred in summarily disposing of this matter, the record reveals no impropriety or bias on its part that would warrant remittal to a different judge (see Gonzalez v. L'Oreal USA, Inc., 92 A.D.3d 1158, 1159–1160, 940 N.Y.S.2d 328 [2012], lv dismissed 19 N.Y.3d 874, 947 N.Y.S.2d 48, 969 N.E.2d 1163 [2012] ; cf. Bank of N.Y. v. Castillo, 120 A.D.3d 598, 601, 991 N.Y.S.2d 446 [2014] ).
Egan Jr., J.P., Lynch, Clark and Pritzker, JJ., concur.
ORDERED that the amended order is reversed, on the law, with costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.