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Smithtown v. McCormack

Appellate Division of the Supreme Court of New York, Second Department
Mar 6, 2007
38 A.D.3d 526 (N.Y. App. Div. 2007)

Opinion

No. 2006-00179.

March 6, 2007.

In an action for an accounting, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated November 15, 2005, as denied his motion for summary judgment dismissing the complaint and granted that branch of the plaintiffs cross motion which was to dismiss the affirmative defense that he was not a proper party to the action.

Scott Lockwood, Deer Park, N.Y., for appellant.

Long Tuminello Besso Seligman Werner LLP, Bay Shore, N.Y. (Kevin R. Johnson of counsel), for respondent.

Before: Santucci, J.P., Goldstein, Carni and McCarthy, JJ.


Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant's submissions in support of his motion for summary judgment failed to demonstrate his entitlement to judgment as a matter of law. Therefore, the motion was properly denied, regardless of the sufficiency of the papers submitted in opposition ( see Alvarez v Prospect Hosp., 68 NY2d 320; Santos v City of New York, 15 AD3d 564; Mariaca-Olmos v Mizrhy, 226 AD2d 437).

Under the circumstances of this case, the court also properly granted that branch of the plaintiff's cross motion which was to dismiss the affirmative defense that the defendant was not a proper party to the action ( see generally St. Teresa's Nursing Home v Vuksanovich, 268 AD2d 421; Grace Plaza of Great Neck v Heitzler, 2 AD3d 780).


Summaries of

Smithtown v. McCormack

Appellate Division of the Supreme Court of New York, Second Department
Mar 6, 2007
38 A.D.3d 526 (N.Y. App. Div. 2007)
Case details for

Smithtown v. McCormack

Case Details

Full title:SMITHTOWN HEALTH CARE FACILITY, Respondent, v. JOHN McCORMACK, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 6, 2007

Citations

38 A.D.3d 526 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 1857
830 N.Y.S.2d 522