| Lillian H. Assoc., LLC v Halal |
| 2016 NY Slip Op 01648 [137 AD3d 873] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| Lillian H. Associates, LLC,Respondent, v Mohammad Halal, Defendant/Third-Party Plaintiff-Appellant.Ahmed Elsoury et al., Third-Party Defendants-Respondents. |
Daniel M. Luisi, Brooklyn, NY, for appellant.
Crawford & Bringslid Attorneys at Law, P.C., Staten Island, NY (Allyn J.Crawford of counsel), for plaintiff-respondent.
Howard M. File, Esq., P.C., Staten Island, NY (Andrew Rafter of counsel), forthird-party defendants-respondents.
In an action, inter alia, to recover damages for breach of a commercial lease, thedefendant/third-party plaintiff appeals from an order of the Supreme Court, RichmondCounty (Maltese, J.), dated October 11, 2013, which granted the plaintiff's unopposedcross motion for summary judgment on the complaint, and the third-party defendants'motion for summary judgment dismissing the third-party complaint.
Ordered that the appeal from so much of the order as granted the plaintiff'sunopposed cross motion for summary judgment on the complaint is dismissed; and it isfurther,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately andfiling separate briefs.
The defendant/third-party plaintiff (hereinafter the appellant) failed to submit papersto the Supreme Court in opposition to the plaintiff's cross motion for summary judgmenton the complaint. Since the cross motion was granted upon the appellant's default, theappeal from that portion of the order must be dismissed (see CPLR 5501; HCA Equip. Fin., LLC vMastrantone, 118 AD3d 850, 851 [2014]; Jampolskaya v Victor Gomelsky, P.C., 36 AD3d 761, 762[2007]).
Furthermore, the appellant's sole contention on appeal with respect to dismissal ofthe third-party complaint is that the third-party defendants breached the implied duty ofgood faith and fair dealing. This contention was not raised before the Supreme Courtand, therefore, is not properly before this Court (see Pekich v James E. Lawrence, Inc., 38 AD3d 632[2007]). Nor does the contention present an issue of law which could not have beenavoided if raised at the proper juncture. Thus, it may not be reached for the first time onappeal (see Sprain Brook ManorNursing Home v Glazer, 6 AD3d 522 [2004]). Rivera, J.P., Sgroi, Miller andHinds-Radix, JJ., concur.