| Town of Delhi v Telian |
| 2014 NY Slip Op 05008 [119 AD3d 1049] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Town of Delhi, Appellant, v Ernie Telian,Respondent, et al., Defendant. |
Young Sommer, LLC, Albany (Joseph F. Castiglione of counsel), for appellant.
Tracy's Law Office, Cherry Valley (Dennis B. Laughlin of counsel), forrespondent.
Devine, J. Appeal from an order of the Supreme Court (Lambert, J.), entered October8, 2013 in Delaware County, which sua sponte dismissed the complaint.
In 2011, plaintiff's code enforcement officer became aware that property ownedand/or occupied by defendants in the Town of Delhi, Delaware County had a number ofstructures on it for which building permits and/or certificates of occupancy had not beenissued. Following, among other things, plaintiff's attempts to have the property broughtinto compliance, it commenced this action in March 2012 seeking injunctive relief andcivil penalties against defendants.
In June 2013, plaintiff moved for, among other things, summary judgment againstdefendant Ernie Telian (hereinafter defendant) on its second cause of action seeking$142,600 in civil penalties for the period of noncompliance from January 12, 2012through August 8, 2012; defendant opposed the motion. Concluding that plaintiff lackedcapacity to sue, Supreme Court sua sponte dismissed the complaint. Plaintiff now appealsand we reverse.
"The issue of lack of capacity to sue does not go to the jurisdiction of the court. . . . Rather, lack of capacity to sue is a ground for dismissal which must beraised by [pre-answer] motion [or in the answer] and is otherwise waived" (City ofNew York v State of New York, 86 NY2d 286, 292 [1995]; see CPLR 3211[a] [3]; [e]; Matter of Tomarkenv State of New York, 100 AD3d 1072, 1074 [2012]; Security Pac. Natl. Bank vEvans, 31 AD3d 278, 280 [2006], [*2]appealdismissed 8 NY3d 837 [2007]). Here, plaintiff's capacity to sue was not raised bypre-answer motion or in defendant's answer. Consequently, Supreme Court erred inraising the issue sua sponte and dismissing the complaint on that basis (see CPLR3211 [e]). As such, the order must be reversed and the complaint reinstated. Further,inasmuch as defendant can no longer raise the issue of plaintiff's capacity to sue in thisaction, plaintiff's arguments regarding its capacity have been rendered academic, and wedecline to address them.
In light of our conclusion, we remit this matter to Supreme Court for consideration ofplaintiff's motion for partial summary judgment.
Peters, P.J., Rose, Egan Jr. and Lynch, JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision.