Breytman v. Olinville Realty, LLC
Decision Date | 27 December 2007 |
Docket Number | 2451.,M-6107. |
Citation | 46 A.D.3d 484,850 N.Y.S.2d 9,2007 NY Slip Op 10495 |
Parties | ALEXANDER BREYTMAN, Respondent, v. OLINVILLE REALTY, LLC, et al., Appellants. ALEXANDER BREYTMAN, Appellant, v. CITY OF NEW YORK et al., Respondents. |
Court | New York Supreme Court — Appellate Division |
The fact that discovery had not yet been completed did not bar the court from granting the non-City defendants' cross motion for summary judgment on the malicious prosecution cause of action (Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026 [1983]). Neither plaintiff nor his attorney indicated that additional discovery was needed to oppose the cross motion, and even on appeal, plaintiff fails to specify what further discovery he is seeking (see Auerbach v Bennett, 47 NY2d 619, 636 [1979]). The court was also not obliged to deny the non-City defendants' cross motion where they failed to include a copy of the pleadings since the record evidence establishes that when plaintiff moved to consolidate his case against the City defendants with his case against the non-City defendants, he provided a copy of the pleadings (see Welch v Hauck, 18 AD3d 1096, 1098 [2005], lv denied 5 NY3d 708 [2005]). Furthermore, the court had the authority to award summary judgment to the City defendants even though they had not moved for such relief (see CPLR 3212 [b]).
Dismissal of plaintiff's malicious prosecution claim against both the City and non-City defendants was appropriate. The criminal proceeding...
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