Opinion
2017–05920 Index No. 19632/01
07-24-2019
Michael GRUCCI, Appellant, v. Christine GRUCCI, Respondent.
Arthur V. Graseck, Jr., Central Islip, NY, for appellant. Darrin Berger, Huntington, NY, for respondent.
Arthur V. Graseck, Jr., Central Islip, NY, for appellant.
Darrin Berger, Huntington, NY, for respondent.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the judgment is reversed, on the law, with costs, that branch of the defendant's motion which was for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the order is modified accordingly.
The plaintiff commenced this action against the defendant, his former spouse, asserting causes of action alleging fraud and negligence. The defendant moved, inter alia, for summary judgment dismissing the complaint, contending that the plaintiff could not prove any element of the causes of action he had asserted, and that the plaintiff had no admissible evidence that he suffered any injury. In support of her motion, the defendant did not advance any argument that the plaintiff's causes of action were time-barred, or that they did not state a valid cause of action. Nevertheless, the Supreme Court granted that branch of the defendant's motion which was for summary judgment dismissing the complaint on the grounds that the fraud and negligence causes of action were barred by the statute of limitations, and that the plaintiff had failed to state a cause of action to recover damages for negligence. The plaintiff appeals.
The Supreme Court should not have granted that branch of the defendant's motion which was for summary judgment dismissing the complaint on grounds that the parties did not litigate (see Rosenblatt v. St. George Health & Racquetball Assoc., LLC , 119 A.D.3d 45, 54, 984 N.Y.S.2d 401 ; Marshall v. New York City Health & Hosps. Corp. , 186 A.D.2d 542, 543–544, 588 N.Y.S.2d 364 ; Conroy v. Swartout , 135 A.D.2d 945, 522 N.Y.S.2d 354 ; see also Dunham v. Hilco Constr. Co. , 89 N.Y.2d 425, 654 N.Y.S.2d 335, 676 N.E.2d 1178 ).
Considering the issues that the parties did litigate, "[i]t is well settled that in order to be entitled to summary judgment, the movant ‘must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case’ " ( Iannucci v. Kucker & Bruh, LLP , 161 A.D.3d 959, 960, 77 N.Y.S.3d 118, quoting Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). " ‘It is a defendant's burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiff's proof’ " ( Iannucci v. Kucker & Bruh, LLP , 161 A.D.3d at 960, 77 N.Y.S.3d 118, quoting Quantum Corporate Funding, Ltd. v. Ellis , 126 A.D.3d 866, 871, 6 N.Y.S.3d 255 ; see Velasquez v. Gomez , 44 A.D.3d 649, 650, 843 N.Y.S.2d 368 ). Here, in support of her motion for summary judgment, the defendant merely pointed to gaps in the plaintiff's proof instead of affirmatively demonstrating with admissible evidence the merits of a defense.
Since the defendant failed to meet her prima facie burden, the Supreme Court should have denied that branch of her motion which was for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's papers in opposition (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
BALKIN, J.P., COHEN, MILLER and BARROS, JJ., concur.