| Drago v Spadafora |
| 2012 NY Slip Op 03132 [94 AD3d 1041] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Goffredo Drago et al., Appellants, v Antonio Spadafora,Respondent. |
—[*1] David B. Gilbert, Middletown, N.Y., for respondent.
In an action to recover damages for breach of contract, the plaintiffs appeal from an order ofthe Supreme Court, Orange County (Bartlett, J.), dated March 8, 2011, which, inter alia, grantedthe defendant's motion for summary judgment dismissing the complaint and denied their crossapplication to substitute Spadafora Masonry, Inc., as the party defendant.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asdenied the plaintiffs' cross application to substitute Spadafora Masonry, Inc., as the partydefendant is deemed an application for leave to appeal from that portion of the order, and leaveto appeal is granted (see CPLR 5701 [a] [2]; [c]); and it is further,
Ordered that the order is affirmed, with costs.
The plaintiff Goffredo Drago and the defendant, Antonio Spadafora, are brothers-in-law.Drago is a developer and general contractor and is the principal of the plaintiff SaraConstruction, LLC (hereinafter together the plaintiffs). The defendant is a mason and theprincipal of Spadafora Masonry, Inc. (hereinafter Spadafora Masonry). Beginning in or around2006, the plaintiffs were constructing two homes on separate parcels of land in Orange County.At Drago's request, the defendant provided laborers who were employees of Spadafora Masonryto perform certain masonry and stucco work at both locations. There was no written contractbetween the plaintiffs and the defendant. In February 2010, the plaintiffs commenced this breachof contract action against the defendant alleging that certain work was not properly performed.The Supreme Court granted the defendant's motion for summary judgment dismissing thecomplaint.
The defendant demonstrated his prima facie entitlement to judgment as a matter of law onthe ground that the corporate entity, Spadafora Masonry, and not he personally, was the properparty to the action. In opposition, the plaintiffs failed to raise a triable issue of fact (seeZuckerman v City of New York, 49 NY2d 557 [1980]). Under the facts of this case, andcontrary to the plaintiffs' contention, the defendant was under no obligation to plead as anaffirmative defense that he was not the proper party (see Rosario v City of New York,261 AD2d 380, 381 [1999]). The undisputed [*2]evidence showsthat Spadafora Masonry was formed in May 2000, and that Drago was aware of this fact wellbefore the plaintiffs commenced the action. As such, there is no showing that the plaintiffs weretaken by surprise by the defendant's use of an unpleaded defense in his motion for summaryjudgment or were prejudiced thereby (id. at 380-381; see CPLR 3018 [b]).
The Supreme Court properly denied the plaintiffs' cross application, made in their oppositionpapers, to substitute Spadafora Masonry as the party defendant. Whether viewed as a request forleave to amend the complaint or as one for substitution, such request must be made by motion(see CPLR 1021, 3025).
The plaintiffs' remaining contentions either are without merit or have been renderedacademic by our determination. Accordingly, the Supreme Court properly granted the defendant'smotion for summary judgment dismissing the complaint. Dillon, J.P., Angiolillo, Florio andCohen, JJ., concur.