Dobbs v. Smith

Appellate Division of the Supreme Court of New York

Dobbs v. Smith

2017 NY Slip Op 4367, 151 A.D.3d 418, 52 N.Y.S.3d 860

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 1, 2017

Docket4150 652175/14

StatusPublished

This text of 2017 NY Slip Op 4367 (Dobbs v. Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dobbs v. Smith, 2017 NY Slip Op 4367, 151 A.D.3d 418, 52 N.Y.S.3d 860 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, New York County (Robert R. Reed, J.), entered August 8, 2016, which granted the motion by defendant Colin M. Smith residing in Astoria, New York (mov-ant), for summary judgment dismissing the complaint, and marked the case as “disposed,” unanimously modified, on the law and the facts and in the exercise of discretion, to clarify that the complaint is dismissed as against movant only, and that the disposition is non-final, and otherwise affirmed, without costs.

Movant’s motion for summary judgment dismissing the breach of contract claims against him was correctly granted upon movant’s unrebutted showing that he was not the “Colin M. Smith” with whom plaintiff had contracted. However, since movant sought dismissal only as against himself, plaintiff’s request that the action be allowed to continue against the individual who, it appears, assumed movant’s identity, i.e., the “Colin M. Smith” who represented himself to be an attorney with law offices at 721 Fifth Avenue, New York, NY 10022, and purported to enter into the subject contract, should have been granted (see CPLR 5019 [a]; see e.g. Ansonia Assoc, v Ansonia Tenants Coalition, 171 AD2d 411 [1st Dept 1991]; Follender v Maxim, 44 AD3d 1227 [3d Dept 2007]).

Concur — Sweeny, J.P., Mazzarelli, Moskowitz, Manzanet-Daniels and Kapnick, JJ.

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Order, Supreme Court, New York County (Robert R. Reed, J.), entered August 8, 2016, which granted the motion by defendant Colin M. Smith residing in Astoria, New York (mov-ant), for summary judgment dismissing the complaint, and marked the case as “disposed,” unanimously modified, on the law and the facts and in the exercise of discretion, to clarify that the complaint is dismissed as against movant only, and that the disposition is non-final, and otherwise affirmed, without costs.

Movant’s motion for summary judgment dismissing the breach of contract claims against him was correctly granted upon movant’s unrebutted showing that he was not the “Colin M. Smith” with whom plaintiff had contracted. However, since movant sought dismissal only as against himself, plaintiff’s request that the action be allowed to continue against the individual who, it appears, assumed movant’s identity, i.e., the “Colin M. Smith” who represented himself to be an attorney with law offices at 721 Fifth Avenue, New York, NY 10022, and purported to enter into the subject contract, should have been granted (see CPLR 5019 [a]; see e.g. Ansonia Assoc, v Ansonia Tenants Coalition, 171 AD2d 411 [1st Dept 1991]; Follender v Maxim, 44 AD3d 1227 [3d Dept 2007]).

Concur — Sweeny, J.P., Mazzarelli, Moskowitz, Manzanet-Daniels and Kapnick, JJ.

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Bluebook (online)

2017 NY Slip Op 4367, 151 A.D.3d 418, 52 N.Y.S.3d 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dobbs-v-smith-nyappdiv-2017.

Opinion

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