Wash. Realty Owners, LLC v. 260 Wash. St., LLC

• Decision Date: 30 April 2013
• Citation: 964 N.Y.S.2d 137,105 A.D.3d 675,2013 N.Y. Slip Op. 03031
• Parties: WASHINGTON REALTY OWNERS, LLC, Plaintiff–Appellant, v. 260 WASHINGTON STREET, LLC, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 675
964 N.Y.S.2d 137
2013 N.Y. Slip Op. 03031

WASHINGTON REALTY OWNERS, LLC, Plaintiff–Appellant,
v.
260 WASHINGTON STREET, LLC, Defendant–Respondent.

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

April 30, 2013.

[964 N.Y.S.2d 138]

Michael Konopka, New York, for appellant.

Meyner & Landis LLP, Nyack (David B. Grantz of counsel), for respondent.

MAZZARELLI, J.P., DeGRASSE, ABDUS–SALAAM, MANZANET–DANIELS, CLARK, JJ.

[105 A.D.3d 675]Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered February 10, 2012, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and motion denied.

The motion court erred when it determined that defendant met its prima facie burden since defendant failed to include all of the pleadings. Although CPLR 3212(b) requires that a motion for summary judgment be supported by copies of the pleadings, the court has discretion to overlook the procedural defect of missing pleadings when the record is “sufficiently complete” ( Welch v. Hauck, 18 A.D.3d 1096, 1098, 795 N.Y.S.2d 789 [3d Dept. 2005], lv. denied5 N.Y.3d 708, 803 N.Y.S.2d 29, 836 N.E.2d 1152 [2005] [internal quotation marks omitted]; see Ayer v. Sky Club, Inc., 70 A.D.2d 863, 864, 418 N.Y.S.2d 57 [1st Dept. 1979] [the parties were permitted to supplement the record by submitting a copy of the pleadings], appeal dismissed 48 N.Y.2d 705, 422 N.Y.S.2d 68, 397 N.E.2d 758 [1979] ). The record is sufficiently complete when, although the movant has not attached all of the pleadings to the motion, a complete set of the papers is available from the materials submitted ( see e.g. Studio A Showroom, LLC v. Yoon, 99 A.D.3d 632, 952 N.Y.S.2d 879 [1st Dept. 2012] [the pleadings were filed electronically and were available for the court's consideration], Pandian v. New York Health and Hospitals Corp., 54 A.D.3d 590, 591, 863 N.Y.S.2d 668 [1st Dept. 2008] [the pleadings were attached to the reply papers]; Welch, 18 A.D.3d at 1098, 795 N.Y.S.2d 789 [summary judgment properly granted to plaintiff on cross motion where pleadings were attached to defendant's motion for summary judgment] ).

Here, respondent's answer was not included as part of the record. Thus, the motion court did not have a complete set of pleadings available for its consideration. Accordingly, the omission of the pleadings renders the motion procedurally defective

[964 N.Y.S.2d 139]

( seeCPLR 3212[b]; Matsyuk...