

Lillian H. Assoc., LLC v Halal (2016 NY Slip Op 01648)





Lillian H. Assoc., LLC v Halal


2016 NY Slip Op 01648


Decided on March 9, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 9, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
SANDRA L. SGROI
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.


2014-01517
 (Index No. 104236/11)

[*1]Lillian H. Associates, LLC, plaintiff-respondent,
vMohammad Halal, appellant; Ahmed Elsoury, et al., third-party defendants-respondents.


Daniel M. Luisi, Brooklyn, NY, for appellant.
Crawford & Bringslid Attorneys at Law, P.C., Staten Island, NY (Allyn J. Crawford of counsel), for plaintiff-respondent.
Howard M. File, Esq., P.C., Staten Island, NY (Andrew Rafter of counsel), for third-party defendants-respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of a commercial lease, the defendant third-party plaintiff appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated October 11, 2013, which granted the plaintiff's unopposed cross motion for summary judgment on the complaint, and the third-party defendants' motion for summary judgment dismissing the third-party complaint.
ORDERED that the appeal from so much of the order as granted the plaintiff's unopposed cross motion for summary judgment on the complaint is dismissed; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.
The defendant third-party plaintiff (hereinafter the appellant) failed to submit papers to the Supreme Court in opposition to the plaintiff's cross motion for summary judgment on the complaint. Since the cross motion was granted upon the appellant's default, the appeal from that portion of the order must be dismissed (see CPLR 5501; HCA Equip. Fin., LLC v Mastrantone, 118 AD3d 850, 851; Jampolskaya v Victor Gomelsky, P.C., 36 AD3d 761, 762).
Furthermore, the appellant's sole contention on appeal with respect to dismissal of the third-party complaint is that the third-party defendants breached the implied duty of good faith and fair dealing. This contention was not raised before the Supreme Court and, therefore, is not properly before this Court (see Pekich v James E. Lawrence, Inc., 38 AD3d 632). Nor does the contention present an issue of law which could not have been avoided if raised at the proper juncture. Thus, it may not be reached for the first time on appeal (see Sprain Brook Manor Nursing Home v Glazer, 6 AD3d 522).
RIVERA, J.P., SGROI, MILLER and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


