

Dobbs v Smith (2017 NY Slip Op 04367)





Dobbs v Smith


2017 NY Slip Op 04367


Decided on June 1, 2017


Appellate Division, First 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 June 1, 2017

Sweeny, J.P., Mazzarelli, Moskowitz, Manzanet-Daniels, Kapnick, JJ.


4150 652175/14

[*1]David A. Dobbs, Plaintiff-Appellant,
vColin Smith, Defendant-Respondent.


Leavitt & Kerson, Forest Hills (Paul E. Kerson of counsel), for appellant.
McBreen & Kopko, Jericho (Richard A. Auerbach of counsel), for respondent.

Order, Supreme Court, New York County (Robert R. Reed, J.), entered August 8, 2016, which granted the motion by defendant Colin M. Smith residing in Astoria, New York (movant), for summary judgment dismissing the complaint, and marked the case as "disposed," unanimously modified, on the law and the facts and in the exercise of discretion, to clarify that the complaint is dismissed as against movant only, and that the disposition is non-final, and otherwise affirmed, without costs.
Movant's motion for summary judgment dismissing the breach of contract claims against him was correctly granted upon movant's unrebutted showing that he was not the "Colin M. Smith" with whom plaintiff had contracted. However, since movant sought dismissal only as against himself, plaintiff's request that the
action be allowed to continue against the individual who, it appears, assumed movant's identity, i.e., the "Colin M. Smith" who represented himself to be an attorney with law offices at 721 Fifth Avenue, New York, NY 10022, and purported to enter into the subject contract, should have been granted (see CPLR 5019[a]; see e.g. Ansonia Assoc. v Ansonia Tenants Coalition, 171 AD2d 411 [1st Dept 1991]; Follender v Maxim, 44 AD3d 1227 [3d Dept 2007).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 1, 2017
CLERK


