BECAUSE TENANT HADN’T ANSWERED, SUMMARY JUDGMENT WAS INAPPROPRIATE
After the Bronx County Civil Court awarded the landlord a final judgment of possession in response to a pre-answer motion for summary judgment – that is, relief in ownership's favor, in advance of a formal hearing or trial, and before the tenant even responded to the pleadings – the tenant appealed.
On its review, the Appellate Term, First Department, noted that entertaining such a request, at that stage of the litigation, was irregular, “premature,” and should have been denied.
While a court is permitted to convert a motion to dismiss, to one for summary judgment, after notice to the parties, that did not happen here. And given the parties didn’t “unequivocally make clear” that they were “laying bare their proof and deliberately charting a summary judgment course,” the AT1 thought the grant of a final judgment of possession in the landlord’s favor was in error and reversed the underlying determination.
Who’s going to answer to that?
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DECISION