Clinkscale v. Sampson
| Decision Date | 01 June 2010 |
| Citation | 74 A.D.3d 721,904 N.Y.S.2d 447 |
| Parties | Bessie CLINKSCALE, appellant, v. Gary SAMPSON, defendant, Susan Sampson, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
74 A.D.3d 721
Bessie CLINKSCALE, appellant,
v.
Gary SAMPSON, defendant,
Susan Sampson, et al., respondents.
Supreme Court, Appellate Division, Second Department, New York.
June 1, 2010.
Fishman & Mallon, LLP, New York, N.Y. (Kevin C. Mallon of counsel), for appellant.
Michael P. Mays, Jamaica, N.Y., for respondents.
PETER B. SKELOS, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
In an action, inter alia, to recover damages for wrongful eviction, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated March 16, 2009, which granted the motion of the defendants Susan Sampson and 1997 Marcy Avenue, Inc., to dismiss the complaint pursuant to CPLR 3211 insofar as asserted against them and, in effect, to vacate a money judgment dated February 9, 2007, pursuant to CPLR 5015(a)(4) and (5) insofar as it was against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Susan Sampson and 1997 Marcy Avenue, Inc., to dismiss the complaint pursuant to CPLR 3211 insofar as asserted against them and, in effect, to vacate a
In 2009, the defendants Susan Sampson and 1997 Marcy Avenue, Inc. (hereinafter together the defendants), moved to dismiss the complaint pursuant to CPLR 3211 insofar as asserted against them and, in effect, to vacate a money judgment dated February 9, 2007, entered in this case, pursuant to CPLR 5015(a)(4) and (5) insofar as it was against them, arguing, inter alia, that they could not be held liable for the judgment because they were not named parties in an underlying landlord-tenant proceeding in the Civil Court of the City of New York, Kings County, which proceeding served as a factual predicate for the liability portion of the judgment ( see Clinkscale v. Sampson, 2005 WL 6202535 [Sup. Ct. Kings County] ). The Supreme Court granted the motion to dismiss the complaint and, in effect, to vacate the related judgment insofar as asserted against the defendants. We reverse.
The defendants' motion, inter alia, to dismiss the complaint pursuant to CPLR 3211, was belatedly made almost five years after the service of responsive pleadings and the defendants' waiver of affirmative defenses ( see CPLR 3211[e] ). Since no extension of time to make the motion to dismiss was requested by...
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