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Windsor Owners Corp. v. Mazzocchi

Supreme Court of New York, First Department

October 15, 2013

Windsor Owners Corp., Plaintiff-Respondent/Appellant,
v.
Frank Mazzocchi, Defendant-Appellant/Respondent, Riley Smith, et al., Defendants

Leeds Brown Law, P.C., Carle Place (Bryan Arbeit of counsel), for appellant/respondent.

Thomas M. Curtis, New York, for respondent/appellant.

Mazzarelli, J.P., Andrias, Freedman, Gische, JJ.

Orders, Supreme Court, New York County (Milton A. Tingling, J.), entered August 27, 2012 and May 6, 2013, which, respectively, denied defendants' motion to dismiss the complaint, and denied plaintiff's motion to strike defendants' answer and/or for summary judgment for defendants' failure to comply with a discovery order, unanimously affirmed, without costs.

The motion court properly denied defendants' motion to dismiss. Defendants' claims that the instant ejectment action was improperly commenced and was unauthorized under plaintiff's by-laws and the proprietary lease, raise, at most, issues of fact. Mazzocchi's current claim that the motion court should have, sua sponte, treated defendants' CPLR 3211 motion to dismiss as one for summary judgment, is unavailing. Defendants never requested that relief below. Even assuming that the parties had requested that the motion be converted to a summary judgment motion, the court gave no notice that it would treat it as such, and the exceptions to the notice requirement are not applicable here (see Mihlovan v Grozavu, 72 N.Y.2d 506, 508 [1988]). In any event, fact issues remain which would have precluded summary judgment.

The motion court did not improvidently exercise its discretion in denying plaintiff's motion (see CPLR 3126). Defendants proffered a reasonable excuse for the delay in complying with the court's prior conditional discovery order and demonstrated the existence of a meritorious defense (see Anderson v Ariel Servs., Inc., 93 A.D.3d 525 [1st Dept 2012]).


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