Fuhr v. Smith
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Fuhr v Smith
2026 NY Slip Op 02921
May 12, 2026
Appellate Division, First 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.
Kristopher Fuhr et al., Appellants,
v
Lisa Smith et al., Respondents.
Decided and Entered: May 12, 2026
Index No. 153767/25|Appeal No. 6591|Case No. 2025-05994|
Before: Scarpulla, J.P., Mendez, Shulman, Rodriguez, Hagler, JJ.
Patrick|Doerr LLP, New York (Mark Doerr of counsel), for appellants.
Harold M. Somer, PC, Westbury (Harold M. Somer of counsel), for respondents.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered July 25, 2025, which, to the extent appealed from as limited by the briefs, granted defendants' motion for an order of seizure, unanimously reversed, on the law, without costs, the order of seizure vacated, and defendants' counterclaim dismissed.
Defendants' answer, filed before plaintiffs filed their complaint, was a nullity, as was any counterclaim contained in the answer (Anostario v Anostario, 255 AD2d 777, 778 n 2 [3d Dept 1998]; see Stevenson v Diamond Fuel Co., Inc. 198 App Div 345, 347 [1st Dept 1921]). Thus, the counterclaim must be dismissed as procedurally improper (see Rubin v Napoli Bern Ripka Shkolnik, LLP, 151 AD3d 603, 604 [1st Dept 2017]). In addition, because there was no valid counterclaim, Supreme Court had no basis on
which to grant defendants' motion for an order of seizure (see Paper Chemistry Consulting Lab. v Goetz, 75 AD2d 579, 579 [2d Dept 1980]).
In light view of the foregoing, plaintiff's remaining arguments are academic.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: May 12, 2026
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