First-Citizens Bank & Trust Co. v. County of Suffolk
This text of First-Citizens Bank & Trust Co. v. County of Suffolk (First-Citizens Bank & Trust Co. v. County of Suffolk) 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.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
First-Citizens Bank & Trust Co. v County of Suffolk
2026 NY Slip Op 04403
July 15, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
First-Citizens Bank & Trust Company, appellant,
v
County of Suffolk, respondent.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 15, 2026
2024-09336, 2025-00645, (Index No. 203285/22)
Francesca E. Connolly, J.P.
Linda Christopher
Barry E. Warhit
Elena Goldberg Velazquez, JJ.
Goetz Platzer LLP, New York, NY (Linda Mandel Gates and Robert Mastrogiacomo of counsel), for appellant.
Christopher J. Clayton, County Attorney, Hauppauge, NY (Drew W. Schirmer of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (John J. Andrews, J.), dated May 6, 2024, and (2) an order of the same court dated December 2, 2024. The order dated May 6, 2024, insofar as appealed from, denied the plaintiff's motion for summary judgment on the complaint and to dismiss the defendant's affirmative defenses. The order dated December 2, 2024, denied the plaintiff's motion for leave to reargue and renew its prior motion for summary judgment on the complaint and to dismiss the defendant's affirmative defenses.
ORDERED that the appeal from the order dated December 2, 2024, is dismissed; and it is further,
ORDERED that the order dated May 6, 2024, is modified, on the law, by deleting the provision thereof denying those branches of the plaintiff's motion which were to dismiss the defendant's fifth, sixth, seventh, thirteenth, and sixteenth affirmative defenses, and substituting therefor a provision granting those branches of the motion; as so modified, the order dated May 6, 2024, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The defendant entered into a master use agreement (hereinafter the MUA) with Carousel Industries of North America, Inc. (hereinafter Carousel), dated December 2, 2014, pursuant to which the defendant was to lease certain equipment from Carousel. The defendant and Carousel also executed an "Equipment Schedule to MUA" (hereinafter the equipment schedule). In June 2016, Carousel and the defendant entered into a letter agreement, which modified the annual payments due pursuant to the MUA and the equipment schedule (hereinafter together the subject agreement).
In October 2022, the plaintiff commenced this action to recover damages for breach of contract and for an account stated. The plaintiff alleged that Carousel had duly assigned the MUA [*2]and all of its rights thereunder to CIT Bank, N.A., and that the plaintiff, as successor by merger to CIT Bank, N.A., was the "holder and owner" of the subject agreement. The plaintiff further alleged that the defendant had defaulted under the terms of the subject agreement by failing to remit all of the required payments due thereunder. The defendant interposed an answer, asserting various affirmative defenses, including a second affirmative defense, alleging lack of standing. The plaintiff subsequently moved for summary judgment on the complaint and to dismiss the defendant's affirmative defenses. In an order dated May 6, 2024, the Supreme Court, inter alia, denied the motion. Thereafter, the plaintiff moved for leave to reargue and renew its prior motion for summary judgment on the complaint and to dismiss the defendant's affirmative defenses. In an order dated December 2, 2024, the court denied the motion. The plaintiff appeals from the order dated May 6, 2024, and the order dated December 2, 2024.
The appeal from the order dated December 2, 2024, must be dismissed. The appeal from so much of that order as denied that branch of the plaintiff's motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument (see Reyes v U.S. Sec. Assoc. Aviation Servs., Inc., 230 AD3d 708, 708-709). The appeal from so much of that order as denied that branch of the plaintiff's motion which was for leave to renew must be dismissed as abandoned, since the plaintiff does not raise any argument in its brief with respect to that branch of its motion (see id. at 709; Cassagnol v Village of Hempstead, 214 AD3d 766, 767).
A party moving for summary judgment has the initial burden to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Leblanc v City of New York, 241 AD3d 1320, 1321). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
"In order for an assignment to be valid, the assignor must be 'divested of all control over the thing assigned'" (Matter of Stralem, 303 AD2d 120, 123, quoting Coastal Commercial Corp. v Kosoff & Sons, 10 AD2d 372, 376; see TPZ Corp. v Dabbs, 25 AD3d 787, 789).
Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law on the complaint. The plaintiff's submissions in support of its motion, including a 2021 invoice issued by Carousel to the defendant seeking payment under the subject agreement, despite Carousel's alleged assignment of the subject agreement to the plaintiff in 2016, failed to eliminate triable issues of fact as to whether the plaintiff had standing to bring this action as an assignee of that agreement (see Fairlane Fin. Corp. v Longspaugh, 144 AD3d 858, 859; TPZ Corp. v Dabbs, 25 AD3d at 789). Since the plaintiff failed to meet its prima facie burden, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the complaint, regardless of the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
CPLR 3211(b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." "When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense" (Shah v Mitra, 171 AD3d 971, 974 [internal quotation marks omitted]; see Diversified Bldg. Co., LLC v Nader Enters., LLC, 243 AD3d 542, 543).
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First-Citizens Bank & Trust Co. v. County of Suffolk, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-citizens-bank-trust-co-v-county-of-suffolk-nyappdiv-2026.