Sutter Sec. Inc. v Ehrenkrantz King Nussbaum, Inc.

[*1] Sutter Sec. Inc. v Ehrenkrantz King Nussbaum, Inc. 2008 NY Slip Op 51265(U) [20 Misc 3d 127(A)] Decided on June 25, 2008 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2008
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ
570110/07.

Sutter Securities Incorporated, Plaintiff-Respondent,

against

Ehrenkrantz King Nussbaum, Inc., Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered on or about November 1, 2006, which, upon an order granting plaintiff summary judgment and denying defendant's motion to dismiss, awarded plaintiff recovery in the principal sum of $24,000.

Per Curiam.

Judgment (Manuel J. Mendez, J.), entered on or about November 1, 2006, reversed, with $30 costs, and plaintiff's summary judgment motion denied.

Defendant filed a pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a), claiming that plaintiff lacked standing to bring this action. Plaintiff cross-moved, requesting that the Court treat its motion as one for summary judgment pursuant to CPLR 3211(c). Civil Court granted plaintiff's cross motion and awarded it summary judgment. Defendant appeals and we reverse.

The court improperly granted summary judgment to plaintiff. The record discloses no notice by Civil Court of its intention to treat the motion as one for summary judgment pursuant to CPLR 3211(c), and although defendant made some effort to controvert the evidence presented in support of plaintiff's motion, it is clear from defendant's opposition to the motion that there was no intention to chart a summary judgment course (see Wiesen v New York University, 304 AD2d 459 [2003]). Defendant's motion to dismiss was properly denied since plaintiff had standing to bring suit against defendant by reason of a written assignment transferring to plaintiff the right to collect the expert fees in dispute.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 25, 2008