Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of the defendant Kings Auto Show Inc (hereinafter KASI or the movant), filed on October 30, 2014, under motion sequence number two, for an order: (1) dismissing the complaint and all cross-claims brought by the co-defendants William Johnson and Gordon Tracey pursuant to CPLR 3211(a) (1); converting the motion to one for summary judgment pursuant to CPLR 3211 (c) and then dismissing the complaint and all cross-claims brought by co-defendants William Johnson and Gordon Tracey; and (3) imposing sanctions on plaintiff and her counsel for legal costs, including attorney fees pursuant to pursuant to 22 NYCRR 130-1.1.

Notice of Motion

Affirmation in support

Memorandum of law in support

Exhibits A-M

Plaintiff's affirmation in opposition

Exhibits A-B

Reply Affirmation and annexed exhibit

On September 10, 2012, plaintiff Arlene Gibbs (hereinafter Gibbs) commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. The complaint contains thirty eight allegations of fact in support of a single cause of action for damages for personal injuries. The complaint alleges in pertinent part that on October 4, 2011, Gibbs was a passenger in an automobile operated by Gordon Tracey bearing license plate number EWV 5962. Gibbs was injured when the Tracey vehicle collided with a vehicle operated by William Johnson bearing license plate number FRR 2127. Gibbs claimed that the collision and the serious personal injuries she sustained as a result were due to the drivers respective negligent operation of their vehicles. The complaint also alleges, among other things, that KASI owned the vehicle operated by Johnson (hereinafter the Johnson vehicle) and that Johnson operated the vehicle with KASI's permission and while employed by KASI.

KASI joined issue by verified answer with cross-claims dated June 20, 2013.

The first branch of KASI's motion seeks dismissal of the complaint and all cross claims asserted against it pursuant to CPLR 3211 (a) (1). With regard to dismissal of the complaint, there is no dispute that KASI joined issue by its answer with cross-claims dated June 20, 2013. This branch of its motion, however, must be denied pursuant to CPLR3211[e] as untimely, as it was not made within the time period in which KASI was required to serve an answer and an extension of time to make the motion was not requested by KASI or granted by the court (see Portilla v Law Offices of Arcia & Flanagan, 125 AD3d 956 [2nd Dept 2015] citing CPLR 2004; and Lema v New York Cent. Mut. Fire Ins. Co ., 112 AD3d 891[2nd Dept 2013]).

The Court noted the following with regard to KASI's motion to dismiss all cross-claims asserted against it. The motion papers submitted contain no evidence that defendants Johnson and Tracy were served with either the summons and complaint or with KASI's answer with cross-claims. KASI's papers do not annex an answer by either of these defendants and, in fact, are silent on whether these defendants have ever appeared in the action.

"There is no authority for compelling [a court] to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214 (c), the court may refuse to consider improperly submitted papers" (Biscone v JetBlue Airways Corp., 103 AD3d 158, 178 [2nd Dept 2012]).

In accordance with CPLR 2214(c), KASI must at a minimum, annex a copy of the pleading to its motion which it wants the court to dismiss (Alizio v Perpignano, 225 AD2d 723 [2nd Dept 2013]).

KASI also seeks an order converting the instant motion to one for summary judgment pursuant to CPLR 3211 (c) and then dismissing the complaint and all cross-claims brought by defendants William Johnson and Gordon Tracey. Once again, KASI's motion papers have created an ambiguity by not setting forth whether defendants William Johnson and Gordon Tracey has been served with the complaint or KASI's answer with cross-claim. While KASI's motion infers that they have appeared and answered the complaint with cross-claims asserted against it, there is nothing in the motion papers establishing any of this. It is of course inappropriate to grant summary judgment to KASI under these circumstances. If these defendants did answer the complaint and did assert cross-claims against KASI at the very least their pleading should be part of KASI's submitted papers pursuant to CPLR 2214(c) or CPLR 3212(b).

The requirement that a motion for summary judgment be supported by the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective (Thompson v. Foreign Cars Center, Inc., 40 AD3d 965 [2nd Dept 2007] citing Matsyuk v. Konkalipos, 35 AD3d 675 [2nd 2006]).

Inasmuch as KASI's motion for dismissal of the complaint and all cross claims asserted against it must be denied for the reasons set forth above, the court need not review the sufficiency of Gibb's opposition papers.

While the Court need not review the opposition papers for the summary judgement motion, the Court did review the opposition in light of the remaining relief requested. Gibb's opposition papers undisputably establishes that it mailed KASI an offer to to discontinue its complaint against KASI with prejudice. The proposed stipulation was signed by Gibb's counsel and merely required that KASI accept the offer on the condition that it would be without costs to either party. The offer came with a cover letter dated October 31, 2014 and with a request that KASI withdraw the instant motion. Gibbs opposition papers aver and establish that it had made multiple requests that KASI provide it with proof that it did not have title to the Johnson vehicle prior to KAI's filing of the instant motion. It further avers that KASI provided the proof after it filed the instant motion.

At oral argument of the motion KASI did not deny these particular assertions contained in Gibb's opposition papers. The Court warned KASI's counsel that under these circumstances that branch of its motion seeking sanctions against Gibbs and her counsel might itself be considered frivolous conduct meriting sanctions against KASI. KASI nevertheless refused to accept Gibb's offer of a discontinuance with prejudice because it came with a condition of no cost to either side. KASI also declined to withdraw its motion for sanctions against Gibbs.

KASI has failed to show that Gibb's conduct in the commencement and prosecution of the instant action is frivolous. Accordingly, KASI's motion for sanctions against Gibbs pursuant to 22 NYCRR 130-1.1. is denied. Despite the Court's warning to KASI, the court declines to find that KASI's conduct in pursuing the instant motion is frivolous conduct in the absence of a motion by Gibbs for such relief.

In accordance with CPLR 3217(d) Gibbs may not discontinue the instant action against KASI without leave of the court because KASI has already answered the complaint and by the instant motion has not consented to same (see CPLR 3217 [a]). Gibbs and KASI, however, are free to reconsider whether they are willing to stipulate to a discontinuance of the action with [*2]prejudice.

CPLR 8106 provides that costs upon a motion may be awarded to any party, in the discretion of the court, and absolutely or to abide the event of the action. CPLR 8202 provides in pertinent part that costs awarded on a motion shall be in an amount fixed by the court, not exceeding one hundred dollars. In accordance with CPLR 8106 and 8202 the Court awards motion cost to Gibbs counsel in the amount of $100.00.

The foregoing constitutes the decision and order of this Court.

J.S.C.