CURRY v. NOCKET


104 A.D.2d 435 (1984)

Thomas Curry et al., Respondents, v. Michael Nocket et al., Appellants

Appellate Division of the Supreme Court of the State of New York, Second Department.

August 20, 1984


Order entered July 13, 1983 affirmed, and orders entered October 13, 1983 and December 20, 1983, respectively, affirmed, insofar as appealed from, without costs or disbursements.

Defendants' initial cross motion, which was initiated by notice of cross motion dated July 6, 1983, was designated as a "Motion for Order dismissing Complaint with prejudice for failure to state a cause of action". However, by (1) specifically requesting that the complaint be dismissed "with prejudice" and (2) submitting "evidentiary material" in support of their cross motion, it is clear that defendants desired their cross motion to be treated as one for summary judgment, and Special Term did not err in so treating it (Kocsor v Eastland, 44 A.D.2d 869; De Filippo v White, 101 A.D.2d 801; CPLR 3211, subd [c]). Moreover, CPLR 3212 (subd [b]) provides that "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion" (see Peoples Sav. Bank v County Dollar Corp., 43 A.D.2d 327, affd 35 N.Y.2d 836; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106). Accordingly, in view of defendants' cross motion for, in effect, summary judgment, Special Term was not precluded from granting summary judgment to plaintiffs even in the absence of a motion by plaintiffs for that relief. A review of the papers submitted in support of, and in opposition to, defendants' cross motion for summary judgment, indicates that no issue of fact existed therein and that pursuant to the applicable principles of law correctly set forth by Special Term, plaintiff buyers were entitled to specific performance of the subject contract for the sale of realty.

The two motions made by defendants subsequent to their initial cross motion for summary judgment were essentially motions to renew, since they contained additional material facts which existed at the time the initial motion was made, but were not made known to the court (Barry v Good Samaritan Hosp., 86 A.D.2d 853, revd on other grounds 56 N.Y.2d 921). However, the new facts could not properly be considered by Special Term since defendants "violated the rule prohibiting successive motions for summary judgment in the guise of motions to renew where the `new' material could have been submitted with the original motion for summary judgment" (Rose v La Joux, 93 A.D.2d 817, 818). In any event, the new facts submitted by defendants, even if considered, would not alter our determination.

Accordingly, the motions to renew were properly denied.


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