Commissioner of the State Ins. Fund v Weissman

Commissioner of the State Ins. Fund v Weissman 2011 NY Slip Op 08677 Decided on December 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 1, 2011
Tom, J.P., Andrias, Catterson, Abdus-Salaam, Román, JJ. 6209-
6210 401064/08

[*1]The Commissioner of the State Insurance Fund, Plaintiff-Appellant,

v

Glenna Weissman, Defendant-Respondent, Associates Realty Builders Construction Corp., Judgment Debtor.




Jan Ira Gellis, New York, for appellant.
John G. Bliss, White Plains, for respondent.
Glenna Weissman, respondent pro se.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered June 25, 2010, which granted defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint based on the documentary evidence, unanimously reversed, on the law, without costs, and the motion denied. Order, same court and Justice, entered June 24, 2010, which denied plaintiff's motion for summary judgment on its fraudulent conveyance claim under Debtor-Creditor Law § 273 and for dismissal of defendant's counterclaim, unanimously reversed, on the law, without costs, the order vacated, and the matter remanded for further proceedings.

Supreme Court held that while the complaint stated causes of action for violations of Debtor-Creditor Law §§ 273, 274 and 276-a, the complaint should be dismissed, pursuant to CPLR 3211(a)(1) as barred by the documentary evidence. Supreme Court stated that because plaintiff Commissioner did not show that defendant was a defendant in an action to recover money damages in which SIF was a plaintiff, or that a judgment was docketed against her, within the meaning of Debtor Creditor Law § 273-a, the entire complaint should be dismissed.

It is not clear, from the motion court's decision, how the failure of the Commissioner to satisfy one element of one cause of action serves to bar the entire complaint, with its admittedly properly pleaded causes of action under Debtor-Creditor Law §§ 273, 274 and 276-a. In any event, the Commissioner states on this appeal that it pleaded no cause of action under § 273-a, and asks that this court reinstate the complaint and to "search the record" to grant it summary judgment on its first cause of action pursuant to § 273 and to dismiss defendant's counterclaim.

To be sure, this court does have broad authority, on a motion for summary judgment, to [*2]"search the record" and grant the motion (see e.g. Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 (1984). However, here, Supreme Court, upon granting defendant's CPLR 3211 motion, did not reach the merits of either party's summary judgment motion. Under these circumstances, a sua sponte search of the record would be an improvident exercise of our discretion. The motion court should consider the summary judgment motions in the first instance (see Conant v Alto 53, LLC, 21 Misc 3d 1147[A]), including the Commissioner's assertion that defendant's counterclaim must be brought in the Court of Claims (Commissioners of State Ins. Fund v Netti Wholesale Beverage Co., 245 AD2d 48 [1997]).

We have considered the parties' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 1, 2011

CLERK