Appellate Advocates (Paul Skip Laisure), for appellant.Kings County District Attorney (Leonard Joblove and Diane R. Eisner of counsel ), for respondent.2015-1910 K CR. THE PEOPLE v. ROSAS, DAVID — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John T. Hecht, J.), rendered July 23, 2015. The judgment convicted defendant, after a nonjury trial, of attempted criminal obstruction of breathing or blood circulation, attempted assault in the third degree (two counts), menacing in the third degree (two counts), harassment in the second degree (two counts), and attempted criminal mischief in the fourth degree.ORDERED that the judgment of conviction is modified, on the law, by vacating the sentences imposed upon the convictions of attempted assault in the third degree (count 5), menacing in the third degree (count 6) and attempted criminal mischief in the fourth degree (count 7); as so modified, the judgment of conviction is affirmed, and the matter is remitted to the Criminal Court for resentencing on those convictions in accordance with this decision and order.Defendant was charged in a prosecutor’s information with eight counts arising from two separate incidents, one on August 16, 2014 and one on November 7, 2014. With respect to the November 2014 incident, defendant was charged with attempted criminal obstruction of breathing or blood circulation (Penal Law §§110.00, 121.11 [a]) (count 1), attempted assault in the third degree (Penal Law §§110.00, 120.00 [1]) (count 2), menacing in the third degree (Penal Law §120.15) (count 3), and harassment in the second degree (Penal Law §240.26 [1]) (count 4). With respect to the August 2014 incident, defendant was charged with attempted assault in the third degree (Penal Law §§110.00, 120.00 [1]) (count 5), menacing in the third degree (Penal Law §120.15) (count 6), attempted criminal mischief in the fourth degree (Penal Law §§110.00, 145.00 [1]) (count 7), and harassment in the second degree (Penal Law §240.26 [1]) (count 8). Following a nonjury trial, defendant was found guilty on all counts and was sentenced to concurrent terms of imprisonment on count 1 (three months), count 2 (three months), count 3 (three months), count 4 (15 days), and count 8 (15 days). He was also sentenced to consecutive terms of imprisonment on count 5 (three months), count 6 (three months), and count 7 (30 days).On appeal, defendant contends that the evidence was legally insufficient; that the verdict was against the weight of the evidence; that the Criminal Court’s denial of his request for a missing witness charge based on the People’s failure to call the complainant’s sister and brother-in-law as witnesses deprived him of his right to due process; that the sentences imposing the consecutive terms of imprisonment are illegal because, prior to imposing the consecutive terms aggregating more than 90 days, the Criminal Court failed to obtain a presentence report; and that all of the sentences are excessive.Upon a review of the record, we find that the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 NY2d 620, 621 [1983]), and indulging in all reasonable inferences in the People’s favor (see People v. Ford, 66 NY2d 428, 437 [1985]), was legally sufficient to establish defendant’s guilt of all of the counts beyond a reasonable doubt. Furthermore, upon the exercise of our factual review power (see CPL 470.15 [5]; People v. Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the factfinder’s opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v. Lane, 7 NY3d 888, 890 [2006]; People v. Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 NY3d 633, 643-646 [2006]).As defendant failed to show that the complainant’s sister and brother-in-law could have been expected to provide noncumulative testimony favorable to defendant (see People v. Gonzalez, 68 NY2d 424, 427 [1986]; People v. Savinon, 100 NY2d 192, 197 [2003]), there was no basis for a missing witness charge (see People v. Thomas, 299 AD2d 942, 943 [2002]; People v. Savinon, 100 NY2d at 197).With respect to sentences imposed on misdemeanor convictions, CPL 390.20 (2) (c) requires that the sentencing court obtain a presentence report prior to sentencing a defendant to “[c]onsecutive sentences of imprisonment with terms aggregating more than ninety days.” It is uncontroverted that the Criminal Court did not obtain such a report prior to sentencing defendant, and the record does not indicate that defendant ever waived a presentence report pursuant to CPL 390.20 (4). Consequently, the sentences imposed upon the convictions of attempted assault in the third degree (count 5), menacing in the third degree (count 6) and attempted criminal mischief in the fourth degree (count 7), with their aggregate of more than 90 days of consecutive terms of imprisonment, must be vacated (see People v. Graci, 275 AD2d 421 [2000]; People v. Duarte, 2002 WL 31962637, *1 [App Term, 2d Dept, 2d & 11th Jud Dists, Sept. 25, 2002, No. 2001-1686 K CR]). In view of the foregoing, defendant’s excessive sentence contention with respect to the sentences imposed on his convictions of counts 5, 6 and 7 has been rendered academic. We find that the remaining sentences imposed were not excessive (see People v. Suitte, 90 AD2d 80 [1982]).Accordingly, the judgment of conviction is modified by vacating the sentences imposed upon the convictions of attempted assault in the third degree (count 5), menacing in the third degree (count 6) and attempted criminal mischief in the fourth degree (count 7), and the matter is remitted to the Criminal Court for resentencing on those convictions.PESCE, P.J., WESTON and ELLIOT, JJ., concur.March 2, 2018Robert J. Adinolfi, Esq., for appellants.Richard J. Leimsider and Lydia Leimsider, respondents pro se.2015-2206 RI C. PESCE v. LEIMSIDER — Appeal from an order of the Civil Court of the City of New York, Richmond County (Lizette Colon, J.), entered June 11, 2015. The order converted a motion by defendant Richard J. Leimsider to dismiss the complaint pursuant to CPLR 3211 (a) into a motion for summary judgment and, upon conversion, granted summary judgment dismissing the complaint insofar as asserted against defendant Richard J. Leimsider and, in effect, sua sponte, granted summary judgment dismissing the complaint insofar as asserted against defendant Lydia Leimsider.ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, in effect, sua sponte, granted summary judgment dismissing the complaint insofar as asserted against defendant Lydia Leimsider is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,ORDERED that the order is reversed, without costs, the motion by defendant Richard J. Leimsider to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) is denied, so much of the order as, in effect, sua sponte, dismissed the complaint insofar as asserted against defendant Lydia Leimsider is vacated, and the complaint, insofar as asserted against defendants Richard J. Leimsider and Lydia Leimsider, is reinstated.In August 2010, plaintiffs purchased a one-family house from Richard J. Leimsider and Lydia Leimsider (defendants). At the closing, defendants’ representative gave plaintiffs a $500 credit in lieu of a Property Condition Disclosure Statement, in accordance with Real Property Law §465. Shortly after the closing, plaintiffs discovered water damage and rotted wood behind some of the walls of the premises. In December 2010, plaintiffs commenced this action in the Supreme Court, Richmond County, alleging in their complaint that defendants1 had concealed certain water damage within the walls of the premises, which had caused them to spend substantial amounts on repairs. In November 2013, the action was transferred to the Civil Court, Richmond County, pursuant to CPLR 325 (d).In March 2015, defendant Richard J. Leimsider moved, pro se,2 to dismiss the complaint insofar as asserted against him “pursuant to CPLR 3211 (a)” on the ground that “law existing at the time of the Original Claim, legal precedent, and the vague, erroneous and ambiguous wording of the Verified Claim denies Plaintiffs both standing and veracity in their action.” Plaintiffs opposed the motion, submitting an affidavit of plaintiff Adriana Pesce, various photographs she had taken, and a copy of an engineer’s report detailing the results of an August 17, 2010 inspection of the premises, which had been performed for the purposes of evaluating the damage caused by water penetration. In an order entered June 11, 2015, the Civil Court determined that the motion was premised on plaintiffs’ failure to state a cause of action, pursuant to CPLR 3211 (a) (7), but converted the motion to dismiss into a motion for summary judgment, pursuant to CPLR 3211 (c), stating that it could do so without notice since the parties had made it “unequivocally clear that they are laying bare their proof and deliberately charting a summary judgment course” by submitting extensive documentary evidence, factual affidavits and an expert report, citing One Monroe, LLC v. City of New York (89 AD3d 812, 813 [2011]; see also Four Seasons Hotels v. Vinnik, 127 AD2d 310, 320 [1987]). The court thereupon granted summary judgment dismissing the complaint insofar as asserted against defendant Richard J. Leimsider and, in effect, sua sponte, granted summary judgment dismissing the complaint insofar as asserted against defendant Lydia Leimsider.The portion of the order that, in effect, sua sponte, granted summary judgment dismissing the complaint insofar as asserted against defendant Lydia Leimsider is not appealable as of right, as no appeal as of right lies from the portion of an order which is decided sua sponte (see CCA 1702 [a] [2]; Sholes v. Meagher, 100 NY2d 333 [2003]). We nevertheless deem the notice of appeal from that portion of the order to be a motion for leave to appeal and grant such leave (see CCA 1702 [c]).CPLR 3211 (c) permits a court, in its discretion, to treat a CPLR 3211 (a) motion to dismiss as a motion for summary judgment “after adequate notice to the parties.” Although the notice requirement may be dispensed with where the parties have made it “unequivocally clear that they are laying bare their proof and deliberately charting a summary judgment course” (Four Seasons Hotels v. Vinnik, 127 AD2d at 320), this exception to the notice requirement is not applicable here because the parties’ evidentiary submissions were not so extensive as to indicate that they were laying bare their proof (see Patel v. Primary Constr., LLC, 115 AD3d 834 [2014]). Plaintiffs “were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered” (Nonnon v. City of New York, 9 NY3d 825, 827 [2007]). Indeed, had plaintiffs been given notice that the motion to dismiss was going to be treated as a summary judgment motion, they might have asked for an opportunity to depose defendants (see e.g. Wesolowski v. St. Francis Hosp., 108 AD3d 525 [2013]) or secured an affidavit from the engineer who had conducted the postclosing inspection, rather than submitting his unsworn report, as they did in opposition to the CPLR 3211 motion. Consequently, in the absence of adequate notice by the Civil Court to treat the motion to dismiss as a motion for summary judgment, and as the papers submitted do not demonstrate that the parties were laying bare their proof and deliberately charting a summary judgment course, the Civil Court erred in converting the motion to dismiss into a motion for summary judgment.However, since, on appeal, the parties have briefed the merits of the motion, in lieu of remitting the motion to the Civil Court for a new determination, we will review the motion by Richard J. Leimsider in the interest of judicial economy (see e.g. Fedele v. Qualified Personal Residence Trust of Doris Rosen Margett, 137 AD3d 965 [2016]) and, in so doing, apply the standards applicable to a motion to dismiss pursuant to CPLR 3211 (a) (7).Upon a motion to dismiss pursuant to CPLR 3211 (a) (7), a court is limited to examining the complaint to determine whether it states a cause of action, accepting facts alleged as true and interpreting them in the light most favorable to the plaintiff (see Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351 [2013]; Friedman v. New York Life Ins. & Annuity Corp., 143 AD3d 939 [2016]). A plaintiff “may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” (Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 NY3d at 351, citing Rovello v. Orofino Realty Co., 40 NY2d 633, 635 [1976]); rather, a plaintiff may stand on its pleading alone to state all the necessary elements of a cognizable cause of action (see Rovello v. Orofino Realty Co., 40 NY2d at 635). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19 [2005]).Here, the facts, as alleged in the complaint, although inartfully worded, demonstrate that plaintiffs have a cognizable cause of action against Richard J. Leimsider based upon his alleged concealment of a latent defect, i.e., the water condition, in the home they purchased from him. As Richard J. Leimsider failed to show that plaintiffs do not have a cognizable cause of action, his motion to dismiss the complaint insofar as asserted against him should have been denied.We note that, contrary to Richard J. Leimsider’s contention, notwithstanding plaintiffs’ acceptance of a $500 credit in lieu of defendants’ failure to provide plaintiffs with a Property Condition Disclosure Statement, plaintiffs are not precluded from pursuing a claim for active concealment of a defect, since Real Property Law §467 provides that nothing contained in the Property Condition Disclosure Act (Real Property Law art 14) “shall be construed as limiting any existing legal cause of action or remedy at law, in statute or in equity” (see Delano v. USA Home Inspection Servs., 15 Misc 3d 142[A], 2007 NY Slip Op 51076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]).Accordingly, the order is reversed, the motion by defendant Richard J. Leimsider to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) is denied, so much of the order as, in effect, sua sponte, dismissed the complaint insofar as asserted against defendant Lydia Leimsider is vacated, and the complaint, insofar as asserted against defendants Richard J. Leimsider and Lydia Leimsider, is reinstated.WESTON and ELLIOT, JJ., concur.PESCE. P.J., taking no part.March 2, 2018
