Patricia Sandiford, respondent, v. Robert Kahn, et al., defendants, Millennium Abstract Corp., appellant. (and other titles) (2011)

Argued—April 29, 2011

DECISION & ORDER

In an action to recover damages for fraud and negligence, the defendant Millenium Abstract Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 16, 2010, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it and pursuant to CPLR 1003 to dismiss the complaint insofar as asserted against it for failure to join a necessary party.

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

The Supreme Court properly denied that branch of the motion of the defendant Millenium Abstract Corp. (hereinafter Millenium) which was for summary judgment dismissing the complaint insofar as asserted against it.   Millenium failed to meet its prima facie burden on that branch of the motion because its own submissions raised triable issues of fact as to whether it breached a duty of care to the plaintiff by allegedly producing inaccurate or falsified documents upon which the plaintiff claims she reasonably relied at the subject real estate closing.   Because Millenium failed to meet its prima facie burden, the sufficiency of the plaintiff's opposition papers need not be addressed (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).

Millenium's additional contention that the complaint must be dismissed insofar as asserted against it for failure to join an alleged joint tortfeasor as a necessary party is without merit (see CPLR 1001[a];  Hecht v. City of New York, 60 N.Y.2d 57, 62;  Ferriola v. DiMarzio, AD3d, 2011 N.Y. Slip Op 02841 [2d Dept 2011] );  Wolstencroft v. Sassower, 124 A.D.2d 582).

MASTRO, J.P., HALL, LOTT and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court