Lopez v Grattan Prop., Inc.

[*1] Lopez v Grattan Prop., Inc. 2009 NY Slip Op 50894(U) [23 Misc 3d 1122(A)] Decided on April 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2009
Supreme Court, Kings County

Leslie Ann Lopez, an infant by her mother and natural guardian, MARIA LOPEZ, and MARIA LOPEZ, individually, Plaintiffs,

against

Grattan Property, Inc., HIRSCHRING CORP., EMMA SANTANA VASQUEZ, COMMUNITY REALTY MANAGEMENT CORP., FREEPORT REALTY MANAGEMENT INC., SUZETTE LEVY and MOUSSA LEVY, Defendants



22674/06

Francois A. Rivera, J.

By notice of cross-motion filed on July 25, 2008, GRATTAN PROPERTY, INC. (hereinafter GPI or movants) and HIRSCHRING CORP (hereinafter Hirschring or movants) jointly move under sequence number four for an order dismissing the complaint and all cross claims asserted against them pursuant to CPLR 3212 and for an order awarding them costs and expenses related to a deposition of the plaintiff.

On February 27, 2009, the date scheduled for oral argument of the cross-motion, the movants appeared and advised the Court that they had received no opposition to the motion.

The affidavit of service of the instant cross-motion alleges service upon the plaintiff and defendant Community Realty Management Corporation. Defendants Emma Santana Vasquez, Freeport Realty Management Inc., Suzette Levy and Moussa Levy are not accounted for in the affidavit of service.

APPLICABLE LAW

CPLR §2103 (b) authorizes the service of papers on any party in a pending action by mailing of such papers to the party's attorney at the address designated by the attorney for such purpose (Unigard Ins. Group v. State, 286 AD2d 56, 58 [2nd Dept 2001]. CPLR §2103 (e) provides that each paper served on any party shall be served on every other party who has appeared, except as otherwise may be provided by court order or as provided in section 3012 or in subdivision (f) of section 3215.

CPLR 3212 (b) provides in pertinent part that a motion for summary judgment shall be [*2]supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.

CPLR Rule 2214. Provides in pertinent part as follows:

Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.

The Uniform Civil Rules For The Supreme Court And The County Court at 22 NYCRR 202.7(a) provides in pertinent part as follows: (a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless there have been served and filed with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.

DISCUSSIONThe cross- motion papers consist of an affirmation of the movant's counsel and thirteen annexed exhibits. The affidavit of service of the instant cross- motion alleges service upon the plaintiff and defendant Community Realty Management Corporation. Contrary to the requirements of CPLR § 2103(e), the movants did not account for defendants Emma Santana Vasquez, Freeport Realty Management Inc., Suzette Levy and Moussa Levy. On this basis alone, the motion should be denied. However, there are other procedural deficiencies which merit mention.

A motion made pursuant to CPLR § 3212 would requires the annexing of pleadings under section 3212(b). The requirement that a motion for summary judgment be supported by the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective and subject to denial on that basis alone (Matsyuk v Konkalipos, 35 AD3d 675 [2-Dept 2006]). The moving papers seeks summary judgment pursuant to CPLR §3212 and do not contain a copy of the pleadings.

The movants seek costs and expenses, including attorneys fees based on a disclosure violation pertaining to the deposition of the guardian of the infant plaintiff. Contrary to the legal requirements of CPLR § 2214, the movants cite no legal authority for the relief requested. Furthermore, the movants do not submit an affirmation of a good faith effort to resolve the purported discovery dispute as required by 22 NYCRR 202.7(a)(2) (Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium, 51 AD3d 784 [2-Dept 2008]).Therefore, although no one appeared or submitted opposition to the instant motion, it is denied without prejudice for the reasons set forth herein. [*3]

The foregoing constitutes the decision, order and judgment of this court.

 1;x

J.S.C.

Rule 202.7 of the Uniform Civil Rules For The Supreme Court And The County Court

Dated:April ___, 2009

Brooklyn, NYFrancois A. Rivera, J.S.C.