DeVries v. Jim Duffy, LLC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 14, 2016
• Docket: 2016 NYSlipOp 51284(U)
• Status: Published

Opinion

Hent DeVries, Orna Ophir, Plaintiffs-Respondents,

against

Jim Duffy, LLC, Living Unlimited Corporation, Defendants-Appellants.

Defendants appeal from a judgment of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered May 21, 2015, which, upon a prior order granting summary judgment, awarded plaintiffs damages in the principal sum of $10,089.

Per Curiam.

Judgment (Gerald Lebovits, J.), entered May 21, 2015, reversed, with $30 costs, plaintiffs' motion for summary judgment denied, without prejudice, and matter remanded to Civil Court for further proceedings.

Civil Court should not have entertained, much less granted plaintiffs' cross motion for summary judgment. The defendants had not yet served an answer (see CPLR 3212[a]; City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). Nor did the court give notice of an intent to convert defendants' preanswer CPLR 3211(a)(7) motion to dismiss the fourth cause of action to a motion for summary judgment addressed to other causes of action (see CPLR 3211[c]; Primedia Inc. v SBI USA LLC, 43 AD3d 685, 686 [2007]) and it is not clear from the record that defendants deliberately charted a summary judgment course (see Chiu v 1-9 Bond St. Realty, Inc., 79 AD3d 416 [2010]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320-321 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 14, 2016