State Farm Fire & Cas. Co. v Louis (2015 NY Slip Op 50200(U))

State Farm Fire & Casualty Company as Subrogee of GEORGE V. BROWN, Plaintiff, -against

against

Jean Louis, Defendant. JEAN LOUIS, Third-Party Plaintiff-Appellant, CITYWIDE AUTO LEASING and STEVEN HARTSTEIN, Third-Party Defendants-Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 2, 2013. The order granted the branch of a motion by third-party defendant Citiwide Auto Leasing, sued herein as Citywide Auto Leasing, and a "cross" motion by third-party defendant Steven Hartstein, each seeking to dismiss the third-party complaint pursuant to CPLR 3211 (a) (5), insofar as asserted against them.

Plaintiff State Farm Fire & Casualty Company commenced this action against defendant Jean Louis to recover amounts plaintiff paid to its subrogor, George V. Brown, under a homeowner's insurance policy, for damage sustained to Brown's real property. Plaintiff alleged that, as a result of an accident caused by Louis's negligent operation of his vehicle, which collided with a vehicle operated by Steven Hartstein and registered to Citiwide Auto Leasing, sued herein as Citywide Auto Leasing (Citiwide), Hartstein's vehicle was caused to go onto Brown's real property, resulting in damage to the real property. After issue was joined, Louis commenced a third-party action against Citiwide and Hartstein. By order entered May 2, 2013, the Civil Court granted the branch of a motion by Citiwide, and a "cross" motion by Hartstein, pursuant to CPLR 3211 (a) (5), seeking to dismiss the third-party complaint insofar as asserted against them.

Although the record in this case contains Louis's counsel's opposition papers, the opposition papers do not bear any date stamp or any other notation indicating when, or even whether, those papers were received by the Civil Court. Since the order, in its recitation of the papers considered by the court, does not recite that the opposition papers were considered, and since there is nothing in the order specifically addressing the arguments and defenses presented by Louis's counsel in the opposition papers, the order, under the circumstances presented, is deemed to have been granted without opposition (see Shahid v Linear Environmental, 34 Misc 3d 158[A], 2012 NY Slip Op 50435[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; cf. Matter of 144 Stuyvesant, LLC v Goncalves, 119 AD3d 695 [2014]).

As Louis may not appeal from an order made without his opposition papers being considered (see CPLR 5511; Benitez v Olson, 29 AD3d 503 [2006]; Viggiani v Grodotzke, 306 AD2d 273 [2003]), the appeal is dismissed.