Somers Realty Corp. v. Big 'V' Properties, Inc.

• Decision Date: 17 April 1989
• Citation: 540 N.Y.S.2d 677,149 A.D.2d 581
• Parties: SOMERS REALTY CORP., Respondent, v. BIG "V" PROPERTIES, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 677

540 N.Y.S.2d 677

149 A.D.2d 581

SOMERS REALTY CORP., Respondent, v. BIG "V" PROPERTIES, INC., Appellant.

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

April 17, 1989

Christy & Viener, New York City (Franklin B. Velie, Richard B. Salomon and Conrad Jordan, of counsel), for appellant. Gioffre & Gioffre, P.C., Port Chester (William J. Giacomo, of counsel), for respondent.

In an action, inter alia, for a judgment declaring the respective rights and obligations of the parties with respect to an alleged easement burdening the defendant's real property and certain rights of access to the defendant's water and sewer systems, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), entered June 28, 1988, as denied its motion for summary judgment. ORDERED that the order is affirmed insofar as appealed from, with costs. The defendant was not entitled to an award of summary judgment, as its papers submitted in support of the motion failed to include a copy of the pleadings as required by statute (see, CPLR 3212[b]; Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776; Freeman v. Easy Glider Roller Rink, 114 A.D.2d 436, 494 N.Y.S.2d 351). Inasmuch as the defendant failed to establish its prima facie entitlement to judgment as a matter of law, we need not reach the question of the sufficiency of the evidence presented by the plaintiff in opposition to the motion (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

RUBIN, J.P., and KOOPER, SULLIVAN and BALLETTA, JJ., concur.