Sydney Realty, LLC v Desiderio

[*1] Sydney Realty, LLC v Desiderio 2007 NY Slip Op 52302(U) [17 Misc 3d 137(A)] Decided on November 29, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
.

Sydney Realty, LLC, Respondent,

against

John S. Desiderio, Appellant. John S. Desiderio, Third-Party Plaintiff-Appellant, Ditmas Management Corp., Gutman & Gutman, LLP and Levy Diamond Bello & Associates, LLC, Third-Party Defendants-Respondents.

Appeal from (1) an order of the District Court of Nassau County, First District (Anna R. Anzalone, J.), entered April 9, 2005, (2) an order of said court (Valerie Bullard, J.), entered December 19, 2005 and (3) an order of said court (Valerie Bullard, J.), entered April 7, 2006. The order entered April 9, 2005 denied defendant's motion to

dismiss the complaint pursuant to CPLR 3126. The order entered December 19, 2005 denied defendant's motion for entry of a default judgment and/or for summary judgment against plaintiff on defendant's counterclaim and against third-party defendants Gutman & Gutman, LLP and Ditmas Management Corp., on defendant's third-party complaint and, upon searching the record, granted summary judgment dismissing defendant's counterclaim, and dismissing his third-party complaint against all third-party defendants. The order entered April 7, 2006 denied defendant's motion seeking relief pursuant to CPLR 3126 against plaintiff and third-party defendants Gutman [*2]& Gutman, LLP and Ditmas Management Corp.

Appeal from order entered April 9, 2005 dismissed as academic.

Appeal from order entered December 19, 2005 modified by striking the portion of the order granting summary judgment in favor of third-party defendants Ditmas Management Corp. and Levy Diamond Bello & Associates, LLC, and by reinstating the third-party complaint as against them; as so modified, affirmed without costs.

Order entered April 7, 2006 modified by striking the portion of the order denying defendant's motion for relief pursuant to CPLR 3126 as against third-party defendant Ditmas Management Corp., and by remanding said branch of the motion to the court below for a determination de novo; as so modified, affirmed without costs.

Plaintiff commenced this action to recover the sum of $3,338 for breach of a lease agreement and based on an account stated. Defendant asserted a counterclaim against plaintiff alleging a violation of the Fair Debt Collection Practices Act (FDCPA), and he commenced a third-party action against Ditmas Management Corp. (Ditmas), Gutman & Gutman, LLP (Gutman) and Levy Diamond Bello & Associates, LLC (Levy Diamond) alleging that Ditmas and Levy Diamond violated the FDCPA.

Defendant moved to dismiss the action against him on the ground that plaintiff failed to validate the alleged debt. The order entered April 9, 2005 (Anna R. Anzalone, J.) granted the motion unless plaintiff provided defendant with certain documents within 30 days of the date of the order. The appeal from said order is dismissed as academic since this court has been advised that plaintiff and defendant have entered into a settlement agreement whereby plaintiff's action against defendant has been discontinued (see Colucci v Colucci, 206 AD2d 956 [1994]; 7B Camody-Wait 2d, NY Prac § 47:4). We note, however, that said stipulation further provided that defendant's appeal concerning his counterclaim against plaintiff remains unaffected.

With respect to defendant's motion for entry of a default judgment and/or for summary judgment against plaintiff on the counterclaim and against third-party defendants Ditmas and Gutman on the third-party complaint, the court below denied the motion on the ground that defendant failed to establish a violation of the FDCPA. The court thereupon searched the record and awarded summary judgment dismissing the counterclaim against plaintiff as well as dismissing the third-party action against all third-party defendants.

We agree that defendant's motion should have been denied, but not for the reasons stated in the lower court's order entered December 19, 2005. Summary judgment should be denied in its entirety since defendant failed to make a prima facie showing of his entitlement thereto (see Zuckerman v City of New York, 49 NY2d 557 [1990]). The motion was supported by an attorney's affirmation which was not based upon personal knowledge of the facts and, therefore, has no probative value (see Warrington v Ryder Truck Rental Inc., 35 AD3d 455 [2006]). Furthermore, the branch of the motion seeking entry of a default judgment on the counterclaim and on the third-party complaint should be denied on the ground that defendant failed to proffer an affidavit of facts in the moving papers or a third-party complaint verified by a party with personal knowledge of the facts pursuant to CPLR 3215 (f) (see Peniston v Epstein, 10 AD3d 450 [2004]). We note that the additional affidavits produced by defendant in reply to plaintiff's opposition were not considered by the court and cannot be considered on appeal (see Vista Surgical Supplies, Inc. v Electric Ins. Co., 14 Misc 3d 134[A], 2007 NY Slip Op 50150[U] [App [*3]Term, 2d & 11th Jud Dists]). Further, when the court searched the record and granted summary judgment dismissing the counterclaim and third-party action (CPLR 3212 [b]), it erred in granting said relief as to Ditmas and Levy Diamond since the record fails to establish that these entities did not violate the FDCPA. The counterclaim against plaintiff was properly dismissed since plaintiff was not seeking to collect a debt for a third party, and is exempt from liability under the FDCPA (see 15 USC §1692 [a] [6]; Kloth v Citibank [South Dakota] N.A., 33 F Supp 2d 115 [1998]). The third-party action against Gutman was properly dismissed since the third-party complaint does not assert a cause of action against it.

Thereafter, defendant moved for relief pursuant to CPLR 3126 against plaintiff and third-party defendants Gutman and Ditmas on the ground that they failed to comply with defendant's discovery demands. In the order entered April 7, 2006, the court denied the motion on the ground that both the counterclaim and the third-party complaint had previously been dismissed pursuant to the order entered December 19, 2005, upon the court's finding that there was no violation of the FDCPA. To the extent those causes of action remain dismissed upon this appeal, we find no basis to disturb the court's April 7, 2006 order. However, in view of the determination herein that Ditmas was not entitled to summary judgment and our reinstatement of the third-party complaint as against Ditmas, the matter is remanded to the court below for a determination de novo of that branch of the motion seeking relief pursuant to CPLR 3126 as against Ditmas.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 29, 2007