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Philip Grant v. Aurora Loan Services

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


September 16, 2011

PHILIP GRANT,
APPELLANT,
v.
AURORA LOAN SERVICES, ROSICKI, ROSICKI & ASSOCIATES, TOMPKINS, MCGUIRE, WACHENFELD, P.C. AND
LEHMAN BROTHERS BANK,
RESPONDENTS.

Grant v Aurora Loan Servs.

Decided on September 16, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered September 24, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of defendants' motions seeking to dismiss the amended complaint and denied the branches of plaintiff's cross motions seeking to enter a default judgment against each defendant.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action by summons and endorsed complaint. The Civil Court (Peter Paul Sweeney, J.) denied a motion to dismiss the endorsed complaint for failure to state a cause of action and directed plaintiff to "serve all parties with a formal complaint within 30 days of service of a copy of this order with notice of entry." Although plaintiff purported to serve an amended complaint, as contemplated by the Civil Court's order, the new complaint was based on events that had allegedly occurred after this action had been commenced, making it a supplemental complaint (see CPLR 3025 [b]). The new pleading also sought, for each cause of action set forth therein, a monetary award beyond the jurisdictional limit of the Civil Court. The Civil Court granted defendants leave to move to dismiss the "amended" complaint for failure to state a cause of action as long as the motions were made within 45 days. A motion was subsequently made to stay the Civil Court action, including defendants' time to serve an answer or a motion to dismiss pursuant to CPLR 3211. The motion was eventually granted, but no temporary stay had been requested in the interim. After the stay expired, defendants moved to dismiss the "amended" complaint and plaintiff cross-moved to, among other things, amend the amended complaint's demand to reflect the monetary jurisdictional limit of the court for each cause of action and to enter a default judgment against each defendant on the ground that the 45-day period had expired.

Under the circumstances of this case, we find no basis to grant the branches of plaintiff's cross motions seeking the entry of a default judgment. Furthermore, we find that there is a basis in the record for the Civil Court's dismissal of four of the five causes of action -- negligence, libel, breach of contract and intentional interference with a business contract -- for failure to state a cause of action (see CPLR 3211 [a] [7]; Stoianoff v Gahona, 248 AD2d 525, 526 [1998]; see also CPLR 3013; Jerry v Borden Co., 45 AD2d 344, 347 [1974]). Plaintiff failed, both in support of the branches of his cross motions seeking to enter default judgments and in opposition to the branches of defendants' motions seeking to dismiss, to demonstrate that any of those causes of action are viable. We note that "where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" (Montemarano v Capani Mgt., 17 Misc 3d 137[A], 2007 NY Slip Op 52296[U] [App Term, 2d & 11th Jud Dists 2007], quoting Green v Dolphy Constr. Co., 187 AD2d 635 [1992]; see also Palmieri v Rainbow Party Rentals, 1 Misc 3d 130[A], 2003 NY Slip Op 51585[U] [App Term, 9th & 10th Jud Dists 2003]).

We further find that the Civil Court properly dismissed plaintiff's trespass cause of action based upon collateral estoppel (see generally Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]).

In light of the foregoing, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: September 16, 2011

20110916

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