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Dcfs Trust v. Olive Mitchell

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


August 6, 2012

DCFS TRUST,
RESPONDENT,
v.
OLIVE MITCHELL,
APPELLANT.

Appeal from a judgment of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered May 18, 2010.

DCFS Trust v Mitchell

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 6, 2012

PRESENT: MOLIA, J.P., NICOLAI and IANNACCI, JJ

The judgment, entered pursuant to an order dated December 9, 2009 granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $9,215.57.

ORDERED that the judgment is reversed, without costs, the order dated December 9, 2009 is vacated, and plaintiff's motion for summary judgment is denied.

In this action to recover for breach of an automobile lease, plaintiff moved for summary judgment, alleging that the balance due under the lease was $9,215.57. In opposition to the motion, defendant disputed the amount sought. By order dated December 9, 2009, the District Court granted the motion, and a judgment was subsequently entered, from which defendant appeals.

Summary judgment is a drastic remedy which should be employed only where there is no doubt as to the absence of triable issues (Kolivas v Kirchoff, 14 AD3d 493 [2005]). Here, as there are unresolved issues of fact concerning the amount claimed to be due under the lease agreement, plaintiff's motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, the order dated December 9, 2009 is vacated, and plaintiff's motion for summary judgment is denied.

Molia, J.P., Nicolai and Iannacci, JJ., concur. Decision Date: August 06, 2012

20120806

© 1992-2012 VersusLaw Inc.



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