MORRIS v. SCHEPP (2009)

Supreme Court, Appellate Division, Fourth Department, New York.

Marlene MORRIS, Plaintiff-Respondent, v. Christopher J. SCHEPP and Susan R. Schepp, Defendants-Appellants.

Decided: February 06, 2009

PRESENT: SCUDDER, P.J., HURLBUTT, CENTRA, GREEN, AND GORSKI, JJ.

Hagelin Kent LLC, Buffalo (Victor M. Wright of Counsel), for Defendants-Appellants. Woods Oviatt Gilman LLP, Rochester (James W. Kiley of Counsel), for Plaintiff-Respondent.

Supreme Court properly denied defendants' motion to dismiss the claim for punitive damages. We note at the outset that the court properly treated the motion as one for summary judgment pursuant to CPLR 3211(c), and we conclude that defendants failed to meet their initial burden on the motion inasmuch as they failed to establish their entitlement to judgment as a matter of law (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Defendants' remaining contention is raised for the first time on appeal and thus is not properly before us (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM:

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