Opinion
2010-1214 N C.
Decided June 30, 2011.
Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered March 17, 2010. The order, insofar as appealed from as limited by the brief, upon denying the branch of plaintiff's motion seeking summary judgment as against defendant Dorothy Napoli, and implicitly denying the branch of plaintiff's motion seeking the entry of a default judgment against defendant Weave It To Us, Inc. doing business as Weave It To Us, searched the record and awarded summary judgment to defendants dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the provision awarding summary judgment to defendants dismissing the complaint is stricken.
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ.
Plaintiff commenced this action in the Supreme Court on August 7, 2003 to recover on a promissory note executed by defendant Weave It To Us, Inc. and personally guaranteed by defendant Dorothy Napoli. Thereafter, the case was transferred to the District Court pursuant to CPLR 325 (d).
It appears that Weave It To Us, Inc. (Weave It) defaulted in the action. Plaintiff moved to enter a default judgment against Weave It and for summary judgment against Dorothy Napoli. In a supporting affidavit submitted by an account manager for LMS Services Inc. (LMS), it is alleged that all rights and causes of actions against defendants were assigned by plaintiff to LMS. The District Court denied the branch of plaintiff's motion seeking summary judgment as against defendant Dorothy Napoli, implicitly denied the branch of defendant's motion seeking the entry of a default judgment against Weave It, and, upon searching the record, awarded defendants summary judgment dismissing the complaint. The court, in effect, found that plaintiff could not maintain the action because it had assigned its rights and causes of action to LMS and LMS had not been made a party to the action.
On appeal, plaintiff's sole contention is that the District Court should not have searched the record and dismissed the complaint.
In our view, the court erred in searching the record and dismissing the complaint on the ground that there was an assignment to LMS of the promissory note and the guaranty. Pursuant to CPLR 1018, where an assignment occurs after an action has been commenced, the action may be continued by the original party. In the absence of evidence establishing the date of the alleged assignment, there was no basis for the court to award defendants summary judgment dismissing the complaint ( see TPZ v Dabbs, 25 AD3d 787).
Accordingly, the order, insofar as appealed from, is reversed, and the provision awarding summary judgment to defendants dismissing the complaint is stricken.
Nicolai, P.J., LaCava and Iannacci, JJ., concur.