Messina v. Turrito

7 A.D.2d 613, 179 N.Y.S.2d 95, 1958 N.Y. App. Div. LEXIS 4575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1958
• Status: Published

Opinion

Order which only denied defendant’s motion for summary. judgment affirmed; the second order, insofar as it denies defendant’s motion for summary judgment affirmed, and insofar as it grants plaintiffs motion to strike out defendant’s answer and orders summary judgment in favor of plaintiff reversed, without costs of these appeals to either party, and plaintiff’s motion denied, without costs. Memorandum: The plaintiff sued in conversion. The defendant then moved for summary judgment and plaintiff cross-moved. The court denied defendant’s motion but granted plaintiff’s motion, struck out defendant’s answer and ordered summary judgment in favor of the plaintiff with direction for an assessment of damages. It appears from the record that there are issues of fact to be determined and that defendant may have a defense to the plaintiff’s action. Furthermore, conversion is not one of the types of action enumerated in rule 113 of the Rules of Civil Practice in which summary judgment may be granted to a plaintiff or to a defendant on a counterclaim (Gilbert v. Gotham Credit Corp., 152 Misc. 598; Rothman v. Charles D. Strang, Inc., 152 Misc. 606; Formel v. National City Bank of New York, 152 Misc. 275; 800 Union St. Corp. v. Bookben Realty Corp., 97 N. Y. S. 2d 723; Prashker, New York Practice [3d ed.], p. 440), and the Special Term therefore had no authority to grant summary judgment to this plaintiff despite the defendant’s defensive motion therefor (Prashker, New York Practice [3d ed.], p. 455). All concur. (Appeal by defendant Turrito from two orders of Chautauqua Special Term (1) denying a motion by said defendant for summary judgment, and (2) granting plaintiff’s motion to strike out defendant’s answer and ordering summary judgment in favor of plaintiff, with direction for an assessment of damages, in an action for damages for the alleged conversion of plaintiff’s automobile.) Present — Kimball, J. P., Williams, Bastow, Goldman and Halpern, JJ.