| Coolidge Equities Ltd. v Falls Ct. Props. Co. |
| 2007 NY Slip Op 08508 [45 AD3d 1289] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Coolidge Equities Ltd., Appellant, v Falls Court PropertiesCompany, Respondent. |
—[*1] Frank A. Bersani, Jr., Syracuse, for defendant-respondent.
Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.),entered February 28, 2006. The order, inter alia, determined that plaintiff was in default on acontract of sale, awarded defendant the deposit held in escrow, vacated the notice of pendencyfiled by plaintiff, and dismissed the complaint.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by denying the cross motion, vacating the second and fifth orderingparagraphs and reinstating the notice of pendency and the complaint and as modified the order isaffirmed without costs.
Memorandum: Plaintiff entered into a contract with defendant for the purchase of certainproperties and thereafter commenced this action seeking, inter alia, to enjoin defendant fromenforcing its "time of the essence" letter based on its failure to fulfill various of its obligationsunder the contract and to enjoin defendant from proceeding with the closings on the propertieswith purchasers other than plaintiff. Supreme Court erred in granting defendant's cross motionfor an order determining that plaintiff was in default with respect to the parties' contract,awarding defendant the $100,000 deposit held in escrow, based upon plaintiff's default, vacatingthe notice of pendency filed by plaintiff, and dismissing the complaint, and we therefore modifythe order accordingly. Contrary to the contention of defendant, its cross motion sought relief inthe nature of summary judgment. " 'A motion for summary judgment may not be made beforeissue is joined . . . and the requirement is strictly adhered to' " (Ward v Guardian Indus. Corp., 17AD3d 1100, 1101 [2005], quoting City of Rochester v Chiarella, 65 NY2d 92, 101[1985]; see CPLR 3212 [a]), and there is no indication in the record that the court and theparties proceeded pursuant to the exception to that requirement set forth in CPLR 3211 (c). It isundisputed that defendant did not file or serve an answer in this action, and thus issue was neverjoined. Defendant's pre-answer cross motion was therefore premature and should have beendenied. Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.