The Second Department determined: (1) a motion for summary judgment should not have been denied based upon a ground not raised by any party in opposition; (2) a motion for summary judgment should not have been denied based on the failure to attach all of the parties’ pleadings to the motion papers; and (3) a motion should not have been denied because it was directed at an amended complaint which was never served, rather than the original complaint:
The Supreme Court erred in denying that branch of the … defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them due to their failure to provide all of the pleadings, as required by CPLR 3212(b). In this regard, the … defendants submitted the complaint and their answer, but did not submit the answers of the other defendants. The … plaintiffs, in opposition, did not contend that this branch of the … defendants’ motion should be denied due to the … defendants’ failure to fully comply with CPLR 3212(b). Consequently, the court should not have raised the issue on the … plaintiffs’ behalf … . Moreover, under the circumstances, the … defendants’ failure to submit the answers of the other defendants was a mere irregularity and, since no substantial right of any party was prejudiced, the court should have disregarded that defect and reached the merits of that branch of the … defendants’ motion … .
… [T]he court should have disregarded the error … in moving against the amended complaint instead of the original complaint, since it did not affect the merits or prejudice a substantial right of the … plaintiffs … . Mew Equity, LLC v Sutton Land Servs., LLC, 2016 NY Slip Op 07630, 2nd Dept 11-16-16
CIVIL PROCEDURE (COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED)/SUMMARY JUDGMENT, MOTIONS FOR (COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED)