Rosemberg v Brens

[*1] Rosemberg v Brens 2012 NY Slip Op 51283(U) Decided on June 27, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2011-800 K C.

Frank Rosemberg, Appellant,

against

Luis Brens, Respondent, -and- MARIA PICHARDO and FREDDY FILPO, Defendants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 7, 2011. The order, insofar as appealed from as limited by the brief, granted the branch of a motion made by defendants Luis Brens and Freddy Filpo seeking summary judgment dismissing the complaint insofar as asserted against defendant Luis Brens.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branch of the motion made by defendants Luis Brens and Freddy Filpo seeking summary judgment dismissing the complaint insofar as asserted against defendant Luis Brens is denied, and the matter is remitted to the Civil Court for a determination of the branch of the motion seeking leave to amend Luis Brens's answer, and for all further proceedings.

Plaintiff commenced this action against three defendants, who plaintiff alleged had rented commercial space from him and had failed to pay rent. Defendants Luis Brens and Freddy Filpo [*2]each interposed an answer and subsequently moved for summary judgment dismissing the complaint as against them or, in the alternative, for leave to interpose an amended answer with affirmative defenses and counterclaims. The Civil Court dismissed the complaint insofar as asserted against Filpo and the third defendant, Maria Pichardo, on consent, and plaintiff concedes in his reply brief that this was proper. The court also dismissed the complaint insofar as asserted against Brens, finding that Brens had "met his burden of proof of payment." Plaintiff appeals, as limited by his brief, from so much of the order as granted the branch of the motion seeking summary judgment dismissing the complaint insofar as asserted against defendant Luis Brens, arguing that the court's finding that Brens had met his burden of proof on the issue of payment was improper.

Brens submitted proof that he had tendered certain sums to his own attorneys, Roy & Associates, which, he alleged, constitutes full payment of the amount being sued upon. Contrary to Brens's argument on appeal, there is nothing in the record to suggest that these payments had been forwarded to plaintiff or plaintiff's attorney so as to establish the defense of payment as a matter of law.

Accordingly, the order, insofar as appealed from, is reversed, the branch of the motion seeking summary judgment dismissing the complaint insofar as asserted against defendant Luis Brens is denied, and the matter is remitted to the Civil Court for a determination of the branch of the motion seeking leave to amend defendant Luis Brens's answer, and for all further proceedings.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 2012