Judith Schrade v CRDN Properties, Inc.

Schrade v CRDN Props., Inc. 2004 NY Slip Op 08292 [12 AD3d 898] November 18, 2004 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Judith Schrade, Appellant, v CRDN Properties, Inc., Respondent.

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Lahtinen, J. Appeal from that part of an order and judgment of the Supreme Court (Williams, J.), entered June 18, 2003 in Saratoga County, which granted defendant's motion for summary judgment dismissing the complaint.

The facts of this property dispute are set forth in our previous decision (303 AD2d 890 [2003]), wherein we upheld Supreme Court's denial of a motion for summary judgment that was filed by defendant shortly after service of its answer. We noted the omissions in the proof that prevented summary judgment at that early juncture in the litigation. Thereafter, defendant obtained documents, gathered evidence and received affidavits directed at addressing those omissions. Defendant then moved for summary judgment dismissing the complaint, striking the notice of pendency and determining the boundaries of plaintiff's lot. Plaintiff cross-moved to amend her complaint to assert a cause of action for adverse possession. Supreme Court granted defendant's motion and denied plaintiff's cross motion. Plaintiff appeals from that part of the order that granted defendant's motion.

The proof submitted by defendant addressed the deficiencies noted in our prior decision and satisfied defendant's threshold burden on a motion for summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) and, thus, shifted the burden to plaintiff to produce competent proof demonstrating triable issues (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Plaintiff's affidavit was directed primarily to her effort to amend the complaint to add a claim for adverse possession, an issue that has not been pursued on appeal. [*2]Her further submissions failed to set forth factual issues necessitating a trial. Accordingly, defendant's motion was properly granted by Supreme Court.

Crew III, J.P., Peters, Mugglin and Rose, JJ., concur. Ordered that the order and judgment is affirmed, with costs.