By: Toussaint, P.J., Mundy, Ottley, JJ. Selma Sol Jaramillo Tabares, appellant pro se. Schneider Buchel, LLP (Ryan D. Hersh of counsel), for respondents.
TABARES v. MOZILIO — Appeal from an order of the Civil Court of the City of New York, Queens County (Ira R. Greenberg, J.), entered January 28, 2022. The order granted a motion by defendants Roberto Mozilio, Lee Hegi, sued herein as Lee Hig, and 83-10 35th Ave Owner’s Corporation for summary judgment dismissing so much of the complaint as was asserted against them and, sua sponte, dismissed so much of the complaint as was asserted against defendant Jeffrey H. Roth. ORDERED that, on the court’s own motion, so much of the notice of appeal as is from that part of the order as, sua sponte, dismissed so much of the complaint as was asserted against defendant Jeffrey H. Roth 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 defendants Roberto Mozilio, Lee Hegi, sued herein as Lee Hig, and 83-10 35th Ave Owner’s Corporation for summary judgment dismissing so much of the complaint as was asserted against them is denied, the sua sponte dismissal of so much of the complaint as was asserted against defendant Jeffrey H. Roth is vacated, and the complaint is reinstated against all defendants. In the summons with endorsed complaint in this action dated December 19, 2019, plaintiff states that she seeks to recover the principal sum of $25,000 for “Failure to return property; Failure to return security; Failure to return deposit; Failure to return money.” In a motion that was supported only by the attorney’s affirmation of Thomas E. Murray III, defendants Robert Mozilio, Lee Hegi, sued herein as Lee Hig, and 83-10 35th Ave Owner’s Corporation (collectively “moving defendants”) moved for summary judgment dismissing so much of the complaint as was asserted against them. Plaintiff opposed moving defendants’ motion. In reply papers that were supported by an attorney’s affirmation and exhibits, among other things, moving defendants argued for the first time that plaintiff’s cause of action was barred because it could have been asserted in a 2015 summary proceeding. In an order entered January 28, 2022, the Civil Court granted moving defendants’ motion for summary judgment and ordered the complaint dismissed, thereby also sua sponte dismissing so much of the complaint as was asserted against defendant Jeffrey H. Roth. At the outset, we note that, in deciding the summary judgment motion (see CPLR 3212), the Civil Court stated that it was dismissing the complaint “for failure to state a cause of action” (see CPLR 3211 [a] [7]). However, the court’s analysis did not focus on the adequacy of the complaint but, rather, rested on its findings that moving defendants had, essentially, demonstrated that plaintiff had suffered no damages and that plaintiff had failed to provide sufficient proof to rebut that showing.
