| Brown v Kass |
| 2012 NY Slip Op 00742 [91 AD3d 894] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Arthur Brown, Respondent, v Elchonon Kass, Appellant.(Action No.1.) Arthur Brown, Respondent, v Elchonon Kass, Appellant, et al., Defendant.(Action No. 2.) Arthur Brown, Respondent, v Aaron Feinberg, Defendant, and Elchonon Kass,Appellant. (Action No. 3.) Arthur Brown, Respondent, v Elchonon Kass, Appellant, et al.,Defendant. (Action No. 4.) (And Other Titles.) |
—[*1] Richard J. Reisch, Carle Place, N.Y., for respondent.
In four related actions, inter alia, to impose a constructive trust (action Nos. 1 and 2), torecover damages for fraud (action No. 3), and to foreclose on a mechanic's lien or based onquantum meruit (action No. 4), which were joined for trial with two other actions, ElchononKass, the defendant in action No. 1 and a defendant in the remaining actions, appeals from anorder of the Supreme Court, Nassau County (Murphy, J.), dated April 4, 2011, which denied hismotion, in effect, for summary judgment dismissing the complaint in action No. 1 and dismissingthe complaints in action Nos. 2, 3, and 4 insofar as asserted against him.
Ordered that the order is affirmed, with costs.
This appeal involves four related actions commenced by Arthur Brown (hereinafter theplaintiff) against, among others, Elchonon Kass (hereinafter the defendant). In action No. 1, theplaintiff sought, inter alia, to impose a constructive trust on certain real property located inAtlantic Beach (hereinafter the Atlantic Beach property). In action No. 2, the plaintiff sought,among other things, to impose a constructive trust over a certain limited liability company. Inaction No. 3, the [*2]plaintiff sought, inter alia, to recoverdamages against the defendant for fraud with respect to the Atlantic Beach property. In actionNo. 4, the plaintiff sought to foreclose on a mechanic's lien or to recover based on quantummeruit, for repairs and alterations allegedly performed by him on the defendant's home.
The defendant moved, in effect, for summary judgment dismissing the complaint in actionNo. 1 and for summary judgment dismissing the complaints insofar as asserted against him inaction Nos. 2, 3, and 4. The Supreme Court denied the motion, concluding that "there existprofound questions of credibility relating primarily to the parties themselves, and also to theirrespective 'witnesses,' " which precluded an award of summary judgment.
"It is not the court's function on a motion for summary judgment to assess credibility"(Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]). " 'On a motion forsummary judgment the court must not weigh the credibility of witnesses unless it clearly appearsthat the issues are feigned and not genuine,' " and " '[a]ny conflict in the testimony or evidencepresented merely raise[s] an issue of fact' " (Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731, 732 [2011],quoting 6243 Jericho Realty Corp. vAutoZone, Inc., 27 AD3d 447, 449 [2006]). Summary judgment is inappropriate wheretriable issues of fact or credibility are raised that require a trial (see Zuckerman v City of NewYork, 49 NY2d 557 [1980]).
With respect to action No. 1, the defendant met his prima facie burden of demonstrating hisentitlement to judgment as a matter of law dismissing the complaint. The defendant also met hisprima facie burden of demonstrating his entitlement to judgment as a matter of law dismissingthe complaint insofar as asserted against him in action No. 3. In opposition to those prima facieshowings, however, the plaintiff raised triable issues of fact (id.).
With respect to action Nos. 2 and 4, the defendant failed to demonstrate, prima facie, that hewas entitled to judgment as a matter of law dismissing the complaints in those actions insofar asasserted against him. The defendant's submissions did not eliminate the existence of triableissues of fact surrounding the various agreements made between the plaintiff and the defendant,and as to their credibility and the credibility of their witnesses. Since the defendant failed to meethis prima facie burden with respect to action Nos. 2 and 4, the sufficiency of the plaintiff'sopposition papers with respect to those actions need not be considered (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court properly denied the defendant's motion, in effect, forsummary judgment dismissing the complaint in action No. 1 and dismissing the complaintsinsofar as asserted against him in action Nos. 2, 3, and 4.
In light of the foregoing, the defendant's remaining contentions need not be reached. Florio,J.P., Chambers, Hall and Miller, JJ., concur. [Prior Case History: 2011 NY Slip Op30963(U).]