Krusen v. Moss

• Decision Date: 18 July 2019
• Docket Number: 526648
• Parties: Michael S. KRUSEN, Respondent, v. Christopher J. MOSS, Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1180
105 N.Y.S.3d 607

Michael S. KRUSEN, Respondent,
v.
Christopher J. MOSS, Appellant.

526648

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

Calendar Date: May 29, 2019
Decided and Entered: July 18, 2019

Levene Gouldin & Thompson, LLP, Vestal (Michael R. Wright of counsel), for appellant.

Hinman, Howard & Kattell, LLP, Binghamton (Albert J. Millus Jr. of counsel), for respondent.

Before: Garry, P.J., Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Aarons, J.

174 A.D.3d 1180

Plaintiff, who at the time was the Deputy County Executive of Chemung County and was running for the position of County Executive, commenced this action claiming that defendant, who was the Chemung County Sheriff and was also running for County Executive at the time, made several defamatory statements concerning his use of a county-issued gas credit card. As relevant here, plaintiff specified two separate statements, one that was published on defendant's campaign Facebook site and one that was published on another Internet website. Prior to serving an answer, defendant moved under CPLR 3024 to strike paragraphs 9 and 24 in the complaint as scandalous and for "[d]ismissal pursuant to CPLR 3211 and/or summary judgment pursuant to CPLR 3212." Plaintiff opposed the motion, and, while it was pending, defendant served an answer. In an April 2018 order, Supreme Court partially granted that part of defendant's motion seeking relief under CPLR 3024 by striking paragraph 9 from the complaint and, as relevant here, denied that part of the motion seeking dismissal of the complaint with respect to the Facebook and Internet postings. Defendant appeals. We affirm.

As an initial matter, we are without jurisdiction to entertain defendant's contentions challenging that part of the April 2018 order that denied his motion to strike certain paragraphs from the complaint under CPLR 3024 (see CPLR 5701[b][3] ). Defendant was required to seek leave to appeal (see e.g. Netbai v. New York State Elec. & Gas Corp., 162 A.D.2d 862, 862, 559 N.Y.S.2d 186 [1990] ) and, because he did not do so, this portion of his appeal is not properly before us (see Collins v. Troy Publ. Co., 213 A.D.2d 879, 881, 623 N.Y.S.2d 663 [1995] ).

Regarding that part of defendant's motion seeking dismissal

174 A.D.3d 1181

of the complaint, we note that, in seeking said relief, defendant relied on both CPLR 3211 and 3212. Plaintiff, however, contends that the standards of only CPLR 3211 should apply. We agree. "A motion for summary judgment may not be made before issue is joined and the requirement 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 [1985] [citations omitted] ). The record reflects that defendant made his motion in September 2017, plaintiff opposed it in October 2017 and defendant served his answer in November 2017. In view of this procedural posture, defendant's motion was premature to the extent that he sought summary judgment. We cannot say that the parties deliberately

105 N.Y.S.3d 610

charted a summary judgment course (see e.g. Kline v. Town of Guilderland, 289 A.D.2d 741, 741 n, 734 N.Y.S.2d 333 [2001] ; Patten Corp. v. Association of Prop. Owners of Sleepy Hollow Lake, 172 A.D.2d 996, 1000, 568 N.Y.S.2d 970...