| Free in Christ Pentecostal Church v Julian |
| 2009 NY Slip Op 05425 [64 AD3d 1153] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| Free in Christ Pentecostal Church, Appellant, v Timothy Julian,Individually and as Mayor of City of Utica and Chairman of Utica Urban Renewal Agency, etal., Respondents. |
—[*1] Linda Fatata, Corporation Counsel, Utica (John P. Orilio of counsel), fordefendants-respondents Timothy Julian, Individually and as Mayor of City of Utica, RobertSullivan, Individually and as Codes Commissioner of City of Utica, Linda Fatata, Individuallyand as legal counsel for City of Utica, pro se, and City of Utica. Goldberg Segalla LLP, Syracuse(Kenneth M. Alweis of counsel), for defendants-respondents Timothy Julian, as Chairman ofUtica Urban Renewal Agency, Linda Fatata, as legal counsel for Urban Renewal Agency, andUtica Urban Renewal Agency.
Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered August 22, 2008. The order, inter alia, granted the motion of certain defendants seekingdismissal of the amended complaint against them and the cross motion of the remainingdefendants seeking summary judgment dismissing the amended complaint against them.
It is hereby ordered that said appeal from the order insofar as it concerned plaintiff's requestsfor disqualification is unanimously dismissed and the order is otherwise affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages based on allegedviolations of its constitutional rights, and Supreme Court thereafter granted the motion of certain[*2]defendants seeking dismissal of the amended complaintagainst them and the cross motion of the remaining defendants seeking summary judgmentdismissing the amended complaint against them. Plaintiff's papers submitted in oppositionincluded the affidavit of plaintiff's attorney in which he sought, inter alia, to disqualify theJustice who had been assigned to the case. Although plaintiff purported to cross-move for thatrelief by way of its attorney's affidavit, plaintiff failed to comply with CPLR 2215 by filing anotice of cross motion. Because "the plaintiff merely requested [that] relief in its oppositionpapers, and did not make a motion on notice as defined in CPLR 2211, the plaintiff is notentitled to appeal as of right from the order denying its request" for disqualification of the Justiceassigned to the case (New York StateDiv. of Human Rights v Oceanside Cove II Apt. Corp., 39 AD3d 608, 609 [2007]).Additionally, we did not grant plaintiff leave to appeal pursuant to CPLR 5701 (c). Thus, thatpart of the appeal with respect to the request for disqualification of the Justice assigned to thecase must be dismissed (see New York State Div. of Human Rights, 39 AD3d at608-609). We likewise conclude that the appeal must be dismissed insofar as plaintiff challengesthe court's denial of its request to disqualify defendant Linda Fatata, corporation counsel forrespondent City of Utica. Plaintiff sought that relief for the first time during oral argument ofdefendants' motion and cross motion, and "[i]t is not enough to request such relief orally on thereturn date" of the motion and cross motion (Guggenheim v Guggenheim, 109 AD2d1012, 1013 [1985]).
Finally, because plaintiff failed to address in its brief any issues concerning the dismissal ofits amended complaint, we deem any such issues abandoned (see Ciesinski v Town ofAurora, 202 AD2d 984 [1994]). Present—Scudder, P.J., Fahey, Peradotto, Carni andGreen, JJ.