| Cremosa Food Co., LLC v Amella |
| 2018 NY Slip Op 06077 [164 AD3d 1300] |
| September 19, 2018 |
| Appellate Division, Second Department |
[*1]
| Cremosa Food Company, LLC, Respondent, v JosephV. Amella, Doing Business as Torcello's Restaurant, Appellant. |
The Weinstein Group, P.C., Syosset, NY (Lloyd J. Weinstein of counsel), for appellant.
Glenn H. Ripa, New York, NY, for respondent.
In an action, inter alia, to recover on an account stated and damages for unjust enrichment,the defendant appeals from an order of the Supreme Court, Suffolk County (William B. Rebolini,J.), dated July 28, 2016. The order denied the defendant's motion for summary judgmentdismissing the complaint.
Ordered that the order is affirmed, with costs.
On September 20, 2013, the plaintiff commenced this action to recover money allegedlyowed by the defendant for goods delivered to the defendant's restaurant in East Northport fromNovember 2009 to April 2010. Without first answering the complaint, the defendant moved forsummary judgment dismissing the complaint. The Supreme Court stated that denial of thedefendant's motion for summary judgment was "required because defendant failed to include acomplete set of the pleadings in support of the motion as required by CPLR 3212 (b)." We affirmthe denial of the defendant's motion, but for a reason different from that relied upon by thecourt.
A motion for summary judgment may only be made after joinder of issue (see CPLR3212 [a]). Where, as here, it is conceded that the defendant had not served an answer beforemoving for summary judgment, issue was not joined and the defendant was precluded fromobtaining summary judgment (seeJBBNY, LLC v Begum, 156 AD3d 769 [2017]; 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d653 [2010]; Alexandru vPappas, 68 AD3d 690 [2009]). The requirement that a motion for summary judgmentmay not be made before issue is joined (see CPLR 3212 [a]) "is strictly adhered to"(City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]; see Lindbergh v SHLO 54, LLC, 128AD3d 642 [2015]). Therefore, summary judgment was not warranted (see Gaskin v Harris, 98 AD3d 941,942 [2012]; Union Turnpike Assoc.,LLC v Getty Realty Corp., 27 AD3d 725 [2006]).
Accordingly, we agree with the Supreme Court's denial of the defendant's motion forsummary judgment. Leventhal, J.P., Cohen, Hinds-Radix and Iannacci, JJ., concur.