Bates v. Inter-Island Mortgagee Corp.

Order, Supreme Court, Bronx County, entered on March 27,1973, unanimously modified, on ¡the law, to strike the grant of summary judgment, the cross motion for summary judgment denied, and the order otherwise affirmed, without costs and without disbursements. Defendant, in opposing plaintiffs’ motion for poor person relief, requested, by way of affidavit, summary judgment. This practice was impermissible. No notice of cross motion was served, and if the affidavit be deemed a notice (which it could not be) timely notice was not given. In addition, a factual issue as to the date of the alleged conversion was disclosed. This issue was vital, as the purported notice was based on the Statute of Limitations. The contention that the practice was permissible under CPLR 3212 (subd. [b]) is untenable. This section allows the court to grant summary judgment to either party on a motion for summary judgment without the necessity for a cross motion. Here, the original motion was not for that relief. On the question of poor person relief, Special Term did not abuse its discretion where the only proof of merit in the action was the attorney’s mere assertion. Concur •— Markewich, J. P., Murphy, Steuer, Capozzoli and Macken, JJ.