Opinion
676 CA 17–02001
06-15-2018
Troy L. SHUKNECHT and Lisa Shuknecht, Plaintiffs–Appellants, v. Joan SHUKNECHT, Defendant–Respondent.
DADD, NELSON, WILKINSON & WUJCIK, ATTICA (JAMES M. WUJCIK OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. LACY KATZEN LLP, ROCHESTER (MICHAEL J. WEGMAN OF COUNSEL), FOR DEFENDANT–RESPONDENT.
DADD, NELSON, WILKINSON & WUJCIK, ATTICA (JAMES M. WUJCIK OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
LACY KATZEN LLP, ROCHESTER (MICHAEL J. WEGMAN OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Supreme Court, Genesee County ( Henry J. Nowak, Jr., J.), entered August 2, 2017. The order, inter alia, granted the motion of defendant for summary judgment on her second counterclaim. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On a prior appeal involving this property dispute, defendant appealed from an order and judgment that granted plaintiffs' motion for a directed verdict dismissing the counterclaims ( Shuknecht v. Shuknecht, 147 A.D.3d 1349, 1350, 46 N.Y.S.3d 924 [4th Dept. 2017] ). This Court reversed the order and judgment, denied the motion, reinstated the counterclaims, and granted a new trial thereon ( id. ). Upon remittal, defendant moved for summary judgment with respect to the second counterclaim. Plaintiffs now appeal from an order that, inter alia, granted that motion, and we affirm.
Plaintiffs failed to preserve for our review their contention that defendant's motion under CPLR 3212(a) is untimely, and thus that contention is not properly before us (see Moreira–Brown v. City of New York, 109 A.D.3d 761, 761, 971 N.Y.S.2d 527 [1st Dept. 2013], lv denied 22 N.Y.3d 859, 2014 WL 113789 [2014] ; Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). With respect to the merits, we conclude that Supreme Court properly granted the motion. Defendant met her initial burden by submitting plaintiffs' admissions on the prior appeal that defendant owned the property at issue and that plaintiffs were obligated and failed to pay the property taxes and insurance, and plaintiffs failed to raise an issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).