In Re Arbitration Between City of Buffalo & Brand-On Services, Inc.

Appellate Division of the Supreme Court of New York

In Re Arbitration Between City of Buffalo & Brand-On Services, Inc.

2017 NY Slip Op 3662, 150 A.D.3d 1675, 51 N.Y.S.3d 916

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

DecidedMay 5, 2017

Docket572 CA 16-01895

StatusPublished

This text of 2017 NY Slip Op 3662 (In Re Arbitration Between City of Buffalo & Brand-On Services, Inc.) 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

In Re Arbitration Between City of Buffalo & Brand-On Services, Inc., 2017 NY Slip Op 3662, 150 A.D.3d 1675, 51 N.Y.S.3d 916 (N.Y. Ct. App. 2017).

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Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered January 11, 2016. The judgment granted petitioner’s motion to dismiss the complaint of intervenor-plaintiff Morton H. Wittlin.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum: Intervenor-plaintiff Morton H. Wittlin commenced this action against petitioner, the City of Buffalo (City), seeking a declaration that he has a valid security interest in certain floating docks in the Erie Basin Marina. The City moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action and for a declaration that ownership of the floating docks is free and clear of any right or interest possessed by Wittlin. Supreme Court granted the City’s motion, dismissed the complaint, and made the declaration sought by the City.

As a preliminary matter, we note that because this is a declaratory judgment action, the court erred in dismissing the complaint (see Tumminello v Tumminello, 204 AD2d 1067, 1067 [1994]; see generally Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]). In any event, we conclude that the court erred in granting the substantive relief sought by the City. Contrary to the City’s view, its evidentiary submissions do not conclusively establish that the City owned the docks in 2009 and that Wittlin does not have a valid security interest in the docks (see Donald Braasch Constr., Inc. v State Ins. Fund, 98 AD3d 1302, 1302-1304 [2012]; Pittsford Plaza Co. LP v TLC W. LLC, 45 AD3d 1272, 1273-1274 [2007]; see generally Fillman v Axel, 63 AD2d 876, 876 [1978]).

Present—Whalen, P.J., Carni, NeMoyer, Curran and Troutman, JJ.

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Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered January 11, 2016. The judgment granted petitioner’s motion to dismiss the complaint of intervenor-plaintiff Morton H. Wittlin.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum: Intervenor-plaintiff Morton H. Wittlin commenced this action against petitioner, the City of Buffalo (City), seeking a declaration that he has a valid security interest in certain floating docks in the Erie Basin Marina. The City moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action and for a declaration that ownership of the floating docks is free and clear of any right or interest possessed by Wittlin. Supreme Court granted the City’s motion, dismissed the complaint, and made the declaration sought by the City.

As a preliminary matter, we note that because this is a declaratory judgment action, the court erred in dismissing the complaint (see Tumminello v Tumminello, 204 AD2d 1067, 1067 [1994]; see generally Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]). In any event, we conclude that the court erred in granting the substantive relief sought by the City. Contrary to the City’s view, its evidentiary submissions do not conclusively establish that the City owned the docks in 2009 and that Wittlin does not have a valid security interest in the docks (see Donald Braasch Constr., Inc. v State Ins. Fund, 98 AD3d 1302, 1302-1304 [2012]; Pittsford Plaza Co. LP v TLC W. LLC, 45 AD3d 1272, 1273-1274 [2007]; see generally Fillman v Axel, 63 AD2d 876, 876 [1978]).

Present—Whalen, P.J., Carni, NeMoyer, Curran and Troutman, JJ.

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2017 NY Slip Op 3662, 150 A.D.3d 1675, 51 N.Y.S.3d 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-arbitration-between-city-of-buffalo-brand-on-services-inc-nyappdiv-2017.

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