BOURNE v. Frank Paladino, etc., appellant. (2023)

DECISION & ORDER

In an action, inter alia, to set aside a deed, the defendant Frank Paladino appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated July 20, 2020.  The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs commenced this action, inter alia, to set aside a deed conveying certain real property to the defendant Martin Development & Management, LLC (hereinafter Martin Development), at a short sale and to recover damages for fraud and related claims.  The defendant Frank Paladino (hereinafter the defendant), the attorney who allegedly represented Martin Development at the subject short sale, moved for summary judgment dismissing the amended complaint insofar as asserted against him.  In an order dated July 20, 2020, the Supreme Court denied the motion.  The defendant appeals.

The Supreme Court properly denied the defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against him.  “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.  Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [citations omitted];  see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).  “A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case” (Lorenzo v. 7201 Owners Corp., 133 A.D.3d 641, 641, 20 N.Y.S.3d 123;  see Solis v. Aguilar, 206 A.D.3d 684, 686, 170 N.Y.S.3d 139).

Here, the defendant failed to meet his prima facie burden with respect to any of the causes of action asserted against him and simply pointed to alleged deficiencies in the plaintiffs’ proof.  Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiffs to raise a triable issue of fact, and the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Solis v. Aguilar, 206 A.D.3d at 686, 170 N.Y.S.3d 139).

BRATHWAITE NELSON, J.P., GENOVESI, WARHIT and VOUTSINAS, JJ., concur.