Appeal from an order of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), entered June 8, 2007, deemed from a judgment of the same court entered June 20, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the June 8, 2007 order granting plaintiff's motion for reargument and/or renewal and, upon the granting thereof, granting plaintiff's motion for summary judgment, awarded plaintiff the sum of $2,485.32.

Judgment affirmed without costs.

Plaintiff commenced the instant action to recover the amount due for goods it sold to defendant. Plaintiff moved for summary judgment, and the motion was denied on the ground that the affidavit submitted in support of the motion was not accompanied by a certificate as required by CPLR 2309 (c). However, as defendant did not raise said issue in his papers submitted in opposition to the motion, the court erred in sua sponte denying the motion based on a failure to comply with CPLR 2309 (c) (see Smith v Allstate Ins. Co., 38 AD3d 522, 523 [2007]; Sparaco v Sparaco, 309 AD2d 1029, 1031 [2003]; Matter of Great Seneca Fin. Corp. v Khanna, 18 Misc 3d 138[A], 2008 NY Slip Op 50302[U] [App Term, 2d & 11th Jud Dists 2008]). The court should have determined said motion on the merits and therefore properly granted plaintiff's motion for reargument and/or renewal by reason of its prior improper denial of the motion for failure to comply with the requirements of CPLR 2309 (c) (Matter of Great Seneca Fin. Corp. v Khanna, 18 Misc 3d 138[A], 2008 NY Slip Op 50302[U] [2008], supra).

As to the merits, a review of the record on appeal indicates that plaintiff established a prima facie case and that defendant failed to raise a triable issue with regard thereto. Accordingly, the lower court properly granted summary judgment in favor of plaintiff. [*2]

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: November 07, 2008