Avalon Gardens Rehab. & Health Care Ctr., LLC v. Morsello

• Decision Date: 11 July 2012
• Citation: 2012 N.Y. Slip Op. 05485,948 N.Y.S.2d 377,97 A.D.3d 611
• Court: New York Supreme Court — Appellate Division
• Parties: AVALON GARDENS REHABILITATION & HEALTH CARE CENTER, LLC, appellant, v. Frank MORSELLO, defendant, Alicia Pititto, et al., respondents.

97 A.D.3d 611

948 N.Y.S.2d 377

2012 N.Y. Slip Op. 05485

AVALON GARDENS REHABILITATION & HEALTH CARE CENTER, LLC, appellant,

v. Frank MORSELLO, defendant,Alicia Pititto, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

July 11, 2012.

Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, Lake Success, N.Y. (Susan Mauro of counsel), for appellant.

Long, Tuminello, Besso, Seligman, Werner & Sullivan, LLP, Bay Shore, N.Y. (Karen S. Svendsen of counsel), for respondent Alicia Pititto.

Michael Morsello, Kings Park, N.Y., respondent pro se.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.

In an action to recover damages, inter alia, for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated May 4, 2010, as granted those branches of the motion of the defendant Alicia Pititto which were for summary judgment dismissing the causes of action alleging breach of contract and fraudulent conveyance insofar as asserted against her and that branch of the motion of the defendant Michael Morsello which was for summary judgment dismissing the cause of action alleging fraudulent conveyance insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The defendant Alicia Pititto met her prima facie burden of establishing her entitlement to judgment as a matter of law dismissing the breach of contract and fraudulent conveyance causes of action insofar as asserted against her ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;Zuckerman v. City of New York, 49 N.Y.2d 557, 559, 427 N.Y.S.2d 595, 404 N.E.2d 718;Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298). Further, the defendant Michael Morsello (hereinafter Morsello) met his prima facie burden of establishing his entitlement to judgment as a matter of law dismissing the fraudulent conveyance cause of action insofar as asserted against him. The plaintiff failed to raise a triable issue of fact in opposition to those showings ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

We reject the plaintiff's contention that the Supreme Court erred in considering Morsello's motion for summary judgment on the merits. Morsello, in his initial moving papers, rather than annexing his answer as an exhibit, inadvertently annexed the answer of codefendant Frank Morsello. This problem was rectified in the reply affirmation of Morsello's counsel, which annexed a copy of the correct pleading as an exhibit. While CPLR 3212(b) requires that motions for summary judgment be supported by, inter alia, a copy of the pleadings, CPLR 2001 permits a court, “[a]t any stage of an action,” to disregard a party's mistake, omission,...