Tribco, LLC v Arsenous

[*1] Tribco, LLC v Arsenous 2006 NY Slip Op 52505(U) [14 Misc 3d 128(A)] Decided on December 15, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2006-263 Q C.

Tribco, LLC d/b/a Queens Tribune, Appellant,

against

Anna Arsenous, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered December 12, 2005. The order denied plaintiff's motion for summary judgment and to dismiss defendant's counterclaim.

Order modified by providing that plaintiff's motion is granted to the extent of dismissing defendant's counterclaim; as so modified, affirmed without costs.

In this action to recover monies allegedly due for nine advertisements placed by defendant in plaintiff's weekly newspaper, plaintiff moved, pursuant to CPLR 3212, for summary judgment on its cause of action and, pursuant to CPLR 3211 (a) (7), to dismiss defendant's counterclaim seeking to recover the sum of $4,000 for "wasting
[her] time." Upon a review of the record, we find that, while plaintiff made a showing of entitlement to summary judgment in its favor, the court properly held that defendant set forth evidentiary proof in admissible form sufficient to demonstrate the existence of triable issues of fact with respect to plaintiff's cause of action (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Hartz Mountain Corp. v Allou Distribs., 173 AD2d 440 [1991], lv denied 79 NY2d 752 [1991]; see also Shea & Gould v Burr, 194 AD2d 369, 371 [1993]; Diamond & Golomb v D'Arc, 140 AD2d 183 [1988]; Sandvoss v Dunkelberger, 112 AD2d 278, 279 [1985]). We note, in this regard, that defendant averred that she signed a blank agreement for two advertisements to be run in a special section of defendant's newspaper, and that she did not authorize or sign for the other nine advertisements that were run. Contrary to the determination of the court below, defendant's counterclaim for "wasting [her] time", which the court construed as seeking damages for frivolous conduct, does not state a cognizable cause of action and should have been dismissed (see generally Couch v Schmidt, 204 AD2d 951 [1994]). [*2]

Accordingly, we modify the order by providing that plaintiff's motion is granted to the extent of dismissing defendant's counterclaim.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: December 15, 2006