Wexelman v Irtaza

[*1] Wexelman v Irtaza 2009 NY Slip Op 50008(U) [22 Misc 3d 1103(A)] Decided on January 6, 2009 Supreme Court, Kings County Rivera, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 6, 2009
Supreme Court, Kings County

Warren Wexelman and Debra Wexelman, Plaintiffs,

against

Muhammed Irtaza and Kaniz Irtaza., Defendants.



22032/07



Counsel:

For Plaintiff

Craig Eaton

1662 Sheepshead Bay Rd

Brooklyn, NY 11235

For Defendant:

Philip M. Hines

Lazarowitz & Manganillo, LLP

2004 Ralph Avenue

Brooklyn, NY 11234

For 3rd party Defendant:

Miller Law Offices

350 Willis Avenue Mineola, NY 11501

Francois A. Rivera, J.

Warren Wexelman and Debra Wexelman (plaintiffs and movants) move for an order, pursuant to CPLR 3212, granting summary judgment in their favor against defendants and awarding plaintiffs, among other things, a monetary judgment in the amount of forty-five thousand dollars ($45,000.00). Muhammed Irtaza and Kaniz Irtaza (defendants) oppose the motion.

BACKGROUND

On August 13, 2007, plaintiffs commenced this action by filing a summons and verified complaint. On August 24, 2007, defendants filed a notice of appearance and verified answer. Defendants' answer asserts sixteen affirmative defenses and two counterclaims. Plaintiffs' complaint alleges defendants' breach of a real estate contract in which plaintiffs agreed to sell and defendants agreed to buy the property known as 248 Whitman Drive, Brooklyn, New York 11234 for the purchase price of nine hundred thousand dollars ($900,000.00).

Defendants two counterclaims allege that plaintiffs fraudulently induce them into the alleged real estate contract by intentionally and/or negligently misrepresenting material facts and providing false documentation. Plaintiffs' motion papers do not indicate whether they replied to defendants counterclaims. On April 4, 2008, a preliminary conference order was signed setting a note of issue filing date of March 5, 2009. Discovery is not complete and a note of issue has not yet been filed.

APPLICABLE LAW

CPLR 3011 pertains to kinds of pleadings and provides as follows:

There shall be a complaint and an answer. An answer may include a counterclaim against a plaintiff and a cross-claim against a defendant. A defendant's pleading against another claimant is an interpleader complaint, or against any other person not already a party is a third-party complaint. There shall be a reply to a counterclaim denominated as such, an answer to an interpleader complaint or third-party complaint, and an answer to a cross-claim that contains a demand for an answer. If no demand is made, the cross-claim shall be deemed denied or avoided. There shall be no other pleading unless the court orders otherwise.

A main purpose of CPLR 3011 is to state the instances in which a responsive pleading is required (Siegel, New York Practice §229, 4th Ed). It specifically provides, in pertinent part, that a counterclaim requires a reply.

CPLR Rule 3212(a) provides, in pertinent part, that any party may move for summary judgement in any action after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. Until 1996, the only time requirement for making a motion for summary judgment was that "issue has been joined" in the action. There was no outer limit until one was enacted in 1996. The moment of joinder of issue continues to be the earliest time for the making of a motion for [*2]summary judgment on the claim involved. If the motion is made against the plaintiff's cause of action, the service of the defendant's answer marks the joinder of issue; if its subject is a counterclaim, the service of the plaintiff's reply is the moment of joinder (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:12). The requirement that issue be joined before a motion for summary judgment is granted "is intended to show the court precisely what the plaintiff's claims and the defendant's position as to them, and his defenses, are" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:11, p 431) and has been strictly adhered to (Miller v. Nationwide Mutual Fire Ins. Co., 92 AD2d 723,724 [4th Dept 1983]).

It has been held that the motion does not lie before joinder of issue "[a]lthough the papers present no triable issue" (Milk v.Gottschalk, 29 AD2d 698 [3rd Dept 1968]). It has also been held that the Supreme Court is powerless to grant summary judgment prior to joinder of issue (see CPLR 3212(a); Union Turnpike Associates, LLC v Getty Realty Corp., 27 AD3d 725, 728 [2nd Dept 2006]).

A motion for summary judgment shall be supported by a copy of the pleadings (CPLR 3212[b]) "The pleadings" means "a complete set of the pleadings" (Wider v Heller, 24 AD3d 433, [2nd Dept 2005]) or "all the pleadings" (Welton v. Drobniki, 298 AD2d 757 [3rd Dept 2002]).

DISCUSSION

The plaintiffs' motion papers do not address the defendants two counterclaims. Both counterclaims allege plaintiffs' fraudulent inducement of the defendants to the alleged real estate contract in question. In the face of plaintiffs silence on this point there can only be one of two possible scenarios. Either the plaintiffs did not reply to defendants counterclaim or they did reply but neglected to annex their reply to their motion papers.

Assuming the plaintiffs did not reply, their reply to the counterclaim was mandated by CPLR 3011. The failure to do so would render the summary judgment premature since issue has not yet been joined (Union Turnpike Associates, LLC v Getty Realty Corp., 27 AD3d 725, 728 [2nd Dept 2006]). Although the movant has submitted extensive documents including a reply containing thirteen annexed exhibits, and the defendants have submitted opposition with two annexed exhibits and a sur-reply with three annexed exhibits, the court is powerless to grant summary judgment on the complaint prior to joinder of issue (id)..

If the plaintiffs did reply to defendants' counterclaim, by not including a copy of their reply to their motion, they have not met their initial burden on the motion, thereby obviating any issue as to the sufficiency of the papers submitted in opposition thereto (Welton, v. Drobniki, 298 AD2d 757 [3rd Dept 2002]).

Although defendants did not raise this deficiency in opposition to the motion, the requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, the motion should be denied on this basis alone (Thompson v. Foreign Car Center, Inc. et. al., 40 AD3d 965 [2nd Dept 2007]). The denial, however, must be without prejudice to renewal (Green v. Wood, 6 AD3d 976 [3rd Dept 2004] citing Welton v. Drobniki, 298 AD2d 757 [3rd Dept 2002]). In light of the foregoing, it is unnecessary to address the parties contentions regarding the propriety of annexing exhibits to plaintiffs' reply papers or the defendants submission of a sur-reply.

Plaintiffs motion for summary judgment is denied without prejudice.. [*3]

The foregoing constitutes the decision and order of this court.

_________________________________x

J.S.C.

Enter forthwith

____________________________