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Supreme Court, Appellate Division, Third Department, New York.

Geary v. Sullivan County Society for Prevention of Cruelty to Animals, Inc.
New York
815 N.Y.S.2d 833 (N.Y., 2006)


Case Details
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Summary:  

In this New York case, plaintiffs surrendered their maltreated horse to defendant Sullivan County Society for the Prevention of Cruelty to Animals, Inc. on March 4, 2005. Shortly thereafter, they commenced this action seeking return of the horse and damages, including punitive damages. Defendants' answer failed to respond to all paragraphs of the 38-paragraph complaint, which included six causes of action, prompting plaintiffs to move for summary judgment on the ground that defendants admitted "all" essential and material facts. At oral argument before this Court, plaintiffs' counsel consented to defendants filing an amended answer. The court found that since this amended pleading will presumably contain denials to all contested allegations in the complaint, plaintiffs' request for summary judgment on the procedural ground that defendants' failed to deny certain facts must fail. Moreover, as correctly noted by Supreme Court, conflicting evidence precludes summary judgment in plaintiffs' favor.



Judge CARPINELLO, J. delivered the opinion of the court.


Opinion of the Court:

Appeal from an order of the Supreme Court (Clemente, J.), entered October 20, 2005 in Sullivan County, which denied plaintiffs' motion for summary judgment.

Plaintiffs surrendered their maltreated horse to defendant Sullivan County Society for the Prevention of Cruelty to Animals, Inc. on March 4, 2005. Shortly thereafter, they commenced this action seeking return of the horse and damages, including punitive damages. Defendants' answer failed to respond to all paragraphs of the 38-paragraph complaint, which included six causes of action, prompting plaintiffs to move for summary judgment on the ground that defendants admitted "all" essential and material facts.

Defendants opposed this relief. Specifically, defense counsel averred that the copy of the complaint provided to him only contained 21 paragraphs and that he responded to all but one of them in drafting the answer. With respect to his failure to admit or deny the allegations contained in this one particular paragraph, defense counsel claimed that such omission was an inadvertent, ministerial error on his part. Noting that contradictory versions of events had been submitted by the parties concerning the circumstances surrounding the horse's removal from plaintiffs' care and custody, Supreme Court denied plaintiffs' motion for summary judgment.

At oral argument before this Court, plaintiffs' counsel consented to defendants filing an amended answer. Since this amended pleading will presumably contain denials to all contested allegations in the complaint (see CPLR 3018[a] ), plaintiffs' request for summary judgment on the procedural ground that defendants' failed to deny certain facts must fail. Moreover, as correctly noted by Supreme Court, conflicting evidence precludes summary judgment in plaintiffs' favor (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

We have reviewed defendants' request for sanctions against plaintiffs' counsel and decline to impose them at this time.

ORDERED that the order is affirmed, with costs.

CARDONA, P.J., PETERS, ROSE and LAHTINEN, JJ., concur.

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