Cremosa Food Co. v. Amella, 2016–10412

• Decision Date: 19 September 2018
• Docket Number: 2016–10412,Index No. 25371/13
• Citation: 164 A.D.3d 1300,81 N.Y.S.3d 749 (Mem)
• Parties: CREMOSA FOOD COMPANY, LLC, respondent, v. Joseph V. AMELLA, etc., appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 1300

81 N.Y.S.3d 749 (Mem)

CREMOSA FOOD COMPANY, LLC, respondent,

v.Joseph V. AMELLA, etc., appellant.

2016–10412

Index No. 25371/13

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

Argued—May 7, 2018

September 19, 2018

The Weinstein Group, P.C., Syosset, N.Y. (Lloyd J. Weinstein of counsel), for appellant.

Glenn H. Ripa, New York, NY, for respondent.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action, inter alia, to recover on an account stated and damages for unjust enrichment, the defendant appeals from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated July 28, 2016. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On September 20, 2013, the plaintiff commenced this action to recover money allegedly owed by the defendant for goods delivered to the defendant's restaurant in East Northport from November 2009 to April 2010. Without first answering the complaint, the defendant moved for summary judgment dismissing the complaint. The Supreme Court stated that denial of the defendant's motion for summary judgment was "required because defendant failed to include a complete set of the pleadings in support of the motion as required by CPLR 3212(b)." We affirm the denial of the defendant's motion, but for a reason different from that relied upon by the court.

A motion for summary judgment may only be made after joinder of issue (see CPLR 3212[a] ). Where, as here, it is conceded that the defendant had not served an answer before moving for summary judgment, issue was not joined and the defendant was precluded from obtaining summary judgment (see JBBNY, LLC v. Begum, 156 A.D.3d 769, 67 N.Y.S.3d 284 ; 115–41 St. Albans Holding Corp. v. Estate of Harrison, 71 A.D.3d 653, 894 N.Y.S.2d 896 ; Alexandru v. Pappas, 68 A.D.3d 690, 890 N.Y.S.2d 593 ). The requirement that a motion for summary judgment may not be made before issue is joined (see CPLR 3212[a] ) "is strictly adhered to" ( City of Rochester v. Chiarella, 65 N.Y.2d 92, 101, 490 N.Y.S.2d 174, 479 N.E.2d 810 ; see Lindbergh v. SHLO 54, LLC, 128 A.D.3d 642, 9 N.Y.S.3d 105 ). Therefore, summary judgment was not warranted (see Gaskin v. Harris, 98 A.D.3d 941, 942, 950 N.Y.S.2d 751 ; Union Turnpike Assoc., LLC v. Getty Realty Corp., 27 A.D.3d 725, 812 N.Y.S.2d 628 ).

Accordingly, we agree with the Supreme Court's denial...