M. Fund, Inc. v. Carter

Appellate Division of the Supreme Court of New York

M. Fund, Inc. v. Carter

31 A.D.3d 620, 819 N.Y.S.2d 299

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

DecidedJuly 18, 2006

StatusPublished

Cited by5 cases

This text of 31 A.D.3d 620 (M. Fund, Inc. v. Carter) 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

M. Fund, Inc. v. Carter, 31 A.D.3d 620, 819 N.Y.S.2d 299 (N.Y. Ct. App. 2006).

Pincite

Opinion

In an action for specific performance of a contract for the sale of real property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Douglass, J.), dated June 2, 2005, as granted the motion of K & G Developers of N.Y., Inc., for leave to reargue, and upon rear[621]*621gument, vacated its prior order dated April 12, 2005, denying the motion of K & G Developers of N.Y., Inc. for leave to intervene and, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint and granting its cross motion for summary judgment, and granted the motion and denied the cross motion.

Ordered that the order dated June 2, 2005 is affirmed insofar as appealed from, with costs to the intervenor, and the matter is remitted to the Supreme Court, Kings County, for a determination of whether the intervenor sustained a loss and, if so, the extent of the loss due to the plaintiffs conduct during the period that the injunction was in effect pursuant to the decision and order on motion of this Court dated July 15, 2005.

The Supreme Court properly granted the motion of nonparty K & G Developers of N.Y., Inc. (hereinafter K & G), for leave to reargue and, upon reargument, inter alia, granted that branch of its motion which was, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint. “To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim” (Trade Source v Westchester Wood Works, 290 AD2d 437, 438 [2002] [internal quotation marks omitted]; see Berardino v Ochlan, 2 AD3d 556 [2003]; Prudential Wykagyl/ Rittenberg Realty v Calabria-Maher, 1 AD3d 422 [2003]). The documentary evidence submitted by K & G to demonstrate that its deed was recorded first conclusively established that defense as a matter of law (see Varon v Annino, 170 AD2d 445 [1991]). Adams, J.P., Goldstein, Luciano and Spolzino, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action for specific performance of a contract for the sale of real property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Douglass, J.), dated June 2, 2005, as granted the motion of K & G Developers of N.Y., Inc., for leave to reargue, and upon rear[621]*621gument, vacated its prior order dated April 12, 2005, denying the motion of K & G Developers of N.Y., Inc. for leave to intervene and, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint and granting its cross motion for summary judgment, and granted the motion and denied the cross motion.

Ordered that the order dated June 2, 2005 is affirmed insofar as appealed from, with costs to the intervenor, and the matter is remitted to the Supreme Court, Kings County, for a determination of whether the intervenor sustained a loss and, if so, the extent of the loss due to the plaintiffs conduct during the period that the injunction was in effect pursuant to the decision and order on motion of this Court dated July 15, 2005.

The Supreme Court properly granted the motion of nonparty K & G Developers of N.Y., Inc. (hereinafter K & G), for leave to reargue and, upon reargument, inter alia, granted that branch of its motion which was, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint. “To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim” (Trade Source v Westchester Wood Works, 290 AD2d 437, 438 [2002] [internal quotation marks omitted]; see Berardino v Ochlan, 2 AD3d 556 [2003]; Prudential Wykagyl/ Rittenberg Realty v Calabria-Maher, 1 AD3d 422 [2003]). The documentary evidence submitted by K & G to demonstrate that its deed was recorded first conclusively established that defense as a matter of law (see Varon v Annino, 170 AD2d 445 [1991]). Adams, J.P., Goldstein, Luciano and Spolzino, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

31 A.D.3d 620, 819 N.Y.S.2d 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/m-fund-inc-v-carter-nyappdiv-2006.

Opinion

Related

Cite This Page — Counsel Stack