Fischer v. Rwsp Realty, LLC

• Decision Date: 22 July 2008
• Docket Number: No. 2007-04298,2007-04298
• Citation: 862 N.Y.S.2d 541,2008 NY Slip Op 6357,53 A.D.3d 594
• Parties: JOSEPH FISCHER, Appellant, v. RWSP REALTY, LLC, Doing Business as PRUDENTIAL RAND REALTY, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 594

862 N.Y.S.2d 541

2008 NY Slip Op 6357

JOSEPH FISCHER, Appellant, v. RWSP REALTY, LLC, Doing Business as PRUDENTIAL RAND REALTY, et al., Respondents.

No. 2007-04298

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided July 22, 2008.

In an action, inter alia, to recover a real estate broker's commission, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated March 27, 2007, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that another action for the same relief was pending, and denied as academic his cross motion

to dismiss the defendants' fifth and sixth affirmative defenses.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiff's contention, the defendants properly framed their motion as one for summary judgment dismissing the complaint. Although a motion for summary judgment is usually based upon the overall merits of the case rather than on an individual defense, once issue has been joined, a motion for summary judgment may be based on CPLR 3211 (a) grounds which have been asserted in the answer (see Mann v Malasky, 41 AD3d 1136 [2007]; Houston v Trans Union Credit Info. Co., 154 AD2d 312 [1989]; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:20).

The Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that a prior action between the parties was pending in Rockland County. In support of their motion, the defendants established that the Rockland County action arose out of the same alleged actionable wrongs as this action, and that both actions sought the same, or substantially the same, relief (see Simonetti v Larson, 44 AD3d 1028 [2007]; Montalvo v Air Dock Sys., 37 AD3d 567 [2007]; Lolly v Brookdale Hosp. Med. Ctr., 37 AD3d 428 [2007]; Liebert v TIAA-CREF, 34 AD3d 756, 757 [2006]). We note that while the complaint in the Rockland County action was dismissed by order entered September 1, 2006, the record reveals that the Supreme Court, Rockland County, subsequently granted the plaintiff's motion for reargument, and upon reargument, denied the defendants' motion to dismiss the complaint, and restored that action to the trial calendar. Thus, the Rockland County action was...