Friday, April 1, 2016

Procedurally Defective Motion is Denied

            In Dolan v. Frigidaire and Sears, Roebuck & Co. (602744/14, NYLJ 1202753683906, decided March 22, 2016), a Nassau County Supreme Court personal injury case, the Court denied the defendants' motion for summary judgment as, among other reasons, it was procedurally defective.  Particularly, the case involved claims of negligence and breach of warranty to recover for personal injuries sustained by the plaintiff while using a stove manufactured by the defendant Frigidaire, and distributed by the defendant Sears, Roebuck & Company.  After conclusion of the discovery process, the defendants moved pursuant to CPLR 3212 to dismiss the plaintiff's action (contending that there were no triable issues of fact for trial).

            The Court denied the defendants' motion, noting that the defendants failed to attach to their motion a certificate of conformity with their expert affidavits, as well as include the entire pleadings, holding as follows: "It is well settled that every motion for summary judgment shall be supported by an affidavit and a copy of all the pleadings and other available proof such as depositions and written admissions...[t]he pleadings are a requisite part of the record of a CPLR §3212 motion and omission of same mandates the denial of summary judgment relief...[t]he failure to support a motion for summary judgment with a copy of the pleadings requires denial of the motion, regardless of the merits of the motion."

Salvatore R. Marino, Esq.