Opinion
2017–05741 Index Nos. 10038/07, 19198/07, 14211/07, 1510/09
10-30-2019
GALASSO, LANGIONE & BOTTER, LLP, etc., Plaintiff, v. Anthony P. GALASSO, et al., Defendants. (Action No. 1) Galasso, Langione & Botter, LLP, et al., Plaintiffs, v. Signature Bank, et al., Defendants. (Action No. 2) Signature Bank, Plaintiff, v. Galasso, Langione & Botter, et al., Defendants. (Action No. 3) Wendy Baron, et al., Respondents, v. Anthony Galasso, et al., Defendants, James Langione, appellant. (Action No. 4)
Mark E. Goidell, Garden City, NY, for appellant. Anthony A. Capetola, Williston Park, N.Y. (Michael C. Barrows of counsel), for respondents.
Mark E. Goidell, Garden City, NY, for appellant.
Anthony A. Capetola, Williston Park, N.Y. (Michael C. Barrows of counsel), for respondents.
RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS, JOHN M. LEVENTHAL, HECTOR D. LASALLE, JJ.
DECISION & ORDER In related actions, inter alia, to recover damages for negligence and breach of fiduciary duty, James Langione, a defendant in Action No. 4, appeals from an order of the Supreme Court, Nassau County (Vito M. DeStefano, J.), entered April 10, 2017. The order, insofar as appealed from, upon reargument, adhered to so much of a determination in an order dated September 19, 2016, as, upon searching the record, awarded summary judgment to the plaintiffs in Action No. 4 on the second, fourth, and tenth causes of action insofar as asserted against James Langione.
ORDERED that the order entered April 10, 2017, is reversed insofar as appealed from, on the law, with costs, and, upon reargument, so much of the determination in the order dated September 19, 2016, as, upon searching the record, awarded summary judgment to the plaintiffs in Action No. 4 on the second, fourth, and tenth causes of action insofar as asserted against James Langione is vacated.
The underlying facts for these related actions may be found in our decision and order in a related appeal (see Galasso, Langione & Botter, LLP v. Galasso , 176 A.D.3d 1176, ––– N.Y.S.3d ––––, 2019 WL 5585131 [Appellate Division Docket No. 2016–12230 ; decided herewith] ).
In the order appealed from, the Supreme Court, upon reargument, adhered to so much of a determination in an order dated September 19, 2016, as, upon searching the record, awarded summary judgment to the plaintiffs in Action No. 4 on the second, fourth, and tenth causes of action insofar as asserted against James Langione.
On a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court (see Dunham v. Hilco Constr. Co. , 89 N.Y.2d 425, 429–430, 654 N.Y.S.2d 335, 676 N.E.2d 1178 ; Baron v. Brown , 101 A.D.3d 915, 916–917, 957 N.Y.S.2d 237 ; Quizhpe v. Luvin Constr. , 70 A.D.3d 912, 914, 895 N.Y.S.2d 490 ). Here, the scope of the arguments made by the plaintiffs in Action No. 4 in support of their motion for summary judgment was limited, and the Supreme Court should not have searched the record and awarded summary judgment to the plaintiffs on the second, fourth, and tenth causes of action insofar as asserted against Langione based upon arguments that were not raised (see Matter of Pritchett , 128 A.D.3d 836, 9 N.Y.S.3d 355 ; Matter of Parisi , 111 A.D.3d 941, 944, 975 N.Y.S.2d 459 ; Baron v. Brown , 101 A.D.3d at 917, 957 N.Y.S.2d 237 ; Quizhpe v. Luvin Constr. , 70 A.D.3d at 914, 895 N.Y.S.2d 490 ).
Accordingly, upon reargument, we vacate so much of the determination in the order dated September 19, 2016, as, upon searching the record, awarded summary judgment to the plaintiffs in Action No. 4 on the second, fourth, and tenth causes of action insofar as asserted against Langione.
BALKIN, J.P., CHAMBERS, LEVENTHAL and LASALLE, JJ., concur.