Majority
p. 370Fourth Avenue Owners Corporation, Respondent, v David Geshwind, Appellant. [644 NYS2d 621]
Summary judgment in the amount awarded was properly granted, it being undisputed that no maintenance was paid during the period covered by the award. The award without interest was appropriate, taking into consideration the ongoing landlord tenant dispute between the parties. None of the proposed defenses could defeat plaintiff’s right to the maintenance awarded. Any claim by defendant that plaintiff did not abide by a stipulation in Civil Court relating to an earlier, separate proceeding to recover maintenance should be addressed to that court. Nor is there merit to defendant’s contention that the motion court erred in not giving notice that it would be
p. 371
treating defendant’s preanswer motion to dismiss as one for summary judgment (CPLR 3211 [c]), it being clear that the parties were submitting all their proof on the subject of maintenance then owing, and thereby deliberately charting a summary judgment course (Four Seasons Hotels v Vinnik, 127 AD2d 310 , 320). We have considered defendant’s remaining contentions and find them to be without merit. Concur—Murphy, P. J., Sullivan, Wallach, Nardelli and Tom, JJ.
Cases cited
- Four Seasons Hotels Ltd. v. Vinnik 127 AD2d 310 at 320 p. 371