| 32nd Ave., LLC v Angelo Holding Corp. |
| 2011 NY Slip Op 07628 [88 AD3d 986] |
| October 25, 2011 |
| Appellate Division, Second Department |
| 32nd Avenue, LLC, Respondent, v Angelo Holding Corp.et al., Defendants, and Higgins Ave., LLC, et al., Appellants. (And a Third-PartyAction.) |
—[*1] Clausen Miller P.C., New York, N.Y. (Edward M. Kay, Christopher T. Scanlon, and DanielR. Bryer of counsel), for appellant Chinatrust Bank (USA). Law Offices of Hersh Jakubowitz, PLLC, Flushing, N.Y. (David Jakubowitz of counsel), forrespondent.
In a consolidated action, inter alia, to recover damages for fraud and to set aside a deed, thedefendants Higgins Ave., LLC, Immanuel Piroozian, and Shahriar Homapour appeal, as limitedby their brief, from so much of an order of the Supreme Court, Queens County (Grays, J.),entered January 14, 2010, as denied those branches of their motion which were for summaryjudgment dismissing the complaint insofar as asserted against them, and on their firstcounterclaim and first cross claim in their amended answer declaring that the defendant HigginsAve., LLC, is the sole owner of the disputed real property, and the defendant Chinatrust Bank(USA) separately appeals, as limited by its notice of appeal, from so much of the same order asdenied that branch of its motion which was for summary judgment dismissing the first, second,and third causes of action insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs payable by theappellants appearing separately and filing separate briefs.
Initially, the appellants waived the defense of lack of standing (see CPLR 3211 [a][3]) by failing to either make a pre-answer motion to dismiss the complaint on that ground orassert that defense in their respective answers (see CPLR 3211 [e]; Countrywide Home Loans, Inc. vDelphonse, 64 AD3d 624, 625 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243[2007]).
The Supreme Court properly denied those branches of the motion of the defendants HigginsAve., LLC, Immanuel Piroozian, and Shahriar Homapour which were for summary judgmentdismissing the complaint insofar as asserted against them, and on their first counterclaim andfirst cross claim in their amended answer declaring that defendant Higgins Ave., LLC, is the soleowner of the disputed real property, as they failed to establish their prima facie entitlement to that[*2]relief (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Ford v UnityHosp., 32 NY2d 464, 472 [1973]; 150 Beach 120th St., Inc. v Washington Brooklyn Ltd. Partnership, 39AD3d 722 [2007]).
Further, the Supreme Court properly denied that branch of the motion of the defendantChinatrust Bank (USA) which was for summary judgment dismissing the first, second, and thirdcauses of action insofar as asserted against it, as it failed to eliminate all triable issues of fact asto whether it breached the subject escrow agreement, and, thus, did not establish its prima facieentitlement to judgment as a matter of law (see Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 789 [2009];Takayama v Schaefer, 240 AD2d 21, 25 [1998]). Mastro, J.P., Florio, Eng and Sgroi, JJ.,concur.
Motion by the appellant Chinatrust Bank (USA) on appeals from an order of the SupremeCourt, Queens County, entered January 14, 2010, to strike the respondent's brief in its entirety onthe ground that it contains matter dehors the record or, in the alternative, to strike stated portionsof the respondent's brief on the ground that those portions refer to matter dehors the record. Bydecision and order on motion of this Court dated June 10, 2011, the motion was held in abeyanceand referred to the panel of Justices hearing the appeals for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeals, it is
Ordered that the branch of the motion which is to strike the respondent's brief in its entiretyis denied; and it is further,
Ordered that the branch of the motion which is to strike stated portions of the respondent'sbrief on the ground that they refer to matter dehors the record is granted, and those portions ofthe brief have not been considered on the appeals. Mastro, J.P., Florio, Eng and Sgroi, JJ.,concur.