| Goldfine v Sichenzia |
| 2010 NY Slip Op 04142 [73 AD3d 854] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Eric Goldfine et al., Appellants, v Michael Sichenzia et al.,Defendants, and Catherine N. Coughlin et al., Respondents. |
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In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order ofthe Supreme Court, Putnam County (O'Rourke, J.), dated August 18, 2008, which, in effect,granted those branches of the motion of the defendant Catherine N. Coughlin which were forsummary judgment dismissing the complaint insofar as asserted against her and the defendantArtesian Abstracts, Inc.
Ordered that the order is modified, on the law, by deleting the provisions thereof, in effect,granting that branch of the motion of the defendant Catherine Coughlin which was for summaryjudgment dismissing the complaint insofar as asserted against the defendant Artesian Abstracts,Inc., and substituting therefor a provision denying that branch of the motion and, upon searchingthe record, summary judgment is awarded to the defendant Artesian Abstracts, Inc., dismissingthe complaint insofar as asserted against that defendant; as so modified, the order is affirmed,without costs or disbursements.
Contrary to the plaintiffs' contention, the Supreme Court properly awarded summaryjudgment to the defendant Catherine N. Coughlin—a shareholder of the defendantArtesian Abstracts, Inc. (hereinafter Artesian)—dismissing the causes of action for severalaccountings insofar as asserted against her (see Akkaya v Prime Time Transp., Inc., 45 AD3d 616, 617[2007]). The Supreme Court also properly awarded summary judgment to Coughlin dismissingthe causes of action to recover money had and received, and to recover damages for conversioninsofar as asserted against her since the plaintiffs failed to allege that Coughlin received moneybelonging to them (see Matter of Witbeck, 245 AD2d 848, 850 [1997]; Rocks &Jeans v Lakeview Auto Sales & Serv., 184 AD2d 502 [1992]), and failed to allege their legalownership or an immediate superior right of possession in the money they claim Coughlinconverted (see generally Castaldi v 39Winfield Assoc., 30 AD3d 458, 458 [2006]; Batsidis v Batsidis, 9 AD3d 342, 343 [2004]). Coughlin thusestablished her prima facie entitlement to judgment as a matter of law as to those causes ofaction and the plaintiffs failed to raise a triable issue of fact in opposition. Accordingly,Coughlin was entitled to summary judgment dismissing those causes of action insofar as assertedagainst her.
Coughlin also established her prima facie entitlement to judgment as a matter of lawdismissing the remainder of the complaint insofar as asserted against her by demonstrating thatthe plaintiffs did not suffer any actual damages (see Goldfine v Sichenzia, 13 AD3d 411 [2004]; see also Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 31 AD3d 418, 422 [2006], mod 8 NY3d 438 [2007]). Theplaintiffs failed to raise [*2]a triable issue of fact in opposition.
While Coughlin could properly make the motion on behalf of herself, she is not an attorney,so she could not make the motion also on behalf of Artesian (see CPLR 321 [a]).Accordingly, because Artesian was not a proper party to the motion, the Supreme Court erred ingranting it relief pursuant to the motion. However, while relief should not have been granted toArtesian pursuant to the motion, this Court has the authority to search the record and awardsummary judgment to a nonmoving and nonappealing party with respect to an issue that was thesubject of a motion before the Supreme Court (see Rivera v Port Auth. of N.Y. & N.J., 69 AD3d 917 [2010]; Madero v Pizzagalli Constr. Co., 62AD3d 670, 673 [2009]; Halloway vState Farm Ins. Cos., 23 AD3d 617, 618 [2005]). Inasmuch as the claims assertedagainst Artesian are identical to those asserted against Coughlin, upon searching the record, weaward summary judgment to Artesian dismissing the complaint insofar as asserted against thatdefendant (see CPLR 3212 [b]).
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Santucci, Belen andChambers, JJ., concur.
Motion by the respondent Catherine N. Coughlin, on an appeal from an order of the SupremeCourt, Putnam County, dated August 18, 2008, inter alia, to dismiss the appeal on the groundthat the appellants did not serve the record and brief on a necessary party. By decision and orderon motion of this Court dated August 25, 2009, that branch of the motion which was to dismissthe appeal on the ground that the appellants did not serve the record and brief on a necessaryparty was held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the branch of the motion which was to dismiss the appeal on the ground that theappellants did not serve the record and brief on a necessary party is denied. Mastro, J.P.,Santucci, Belen and Chambers, JJ., concur.