Commercial Division Blog

Posted: October 18, 2021 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Categories Commercial, Appeals, Real Property

Failure to Challenge All Grounds of Summary Judgment Motion Made Appeal Academic

On September 29, 2021, the Second Department issued a decision in Dorce v Family Dollar Stores of N.Y., Inc., 2021 NY Slip Op 05117, dismissing plaintiff's appeal of the lower court's decision granting defendant summary judgment on ownership of real property, explaining that the appeal was academic:

The plaintiff commenced this action asserting, inter alia, a cause of action alleging that she is the owner of certain real property by adverse possession. She appeals from so much of an order as granted that branch of the defendants' motion which was for summary judgment dismissing this cause of action. The Supreme Court granted this branch of the defendants' motion on three separate independent grounds: (1) that the cause of action is barred by res judicata, (2) that the cause of action is barred by collateral estoppel, and (3) that, on the merits, the defendants established, prima facie, the absence of certain required elements of the cause of action, and the plaintiff failed to raise a triable issue of fact in opposition.

On appeal, the plaintiff argues only that the Supreme Court improperly determined that the cause of action alleging adverse possession is barred by the doctrines of res judicata and collateral estoppel. The plaintiff does not challenge the court's determination that, on the merits, the defendants established, prima facie, the absence of certain required elements of the cause of action alleging adverse possession, and that the plaintiff failed to raise a triable issue of fact in opposition. Thus, as the defendants correctly contend, even if we were to find the plaintiff's appellate arguments persuasive, an independent alternative ground exists for awarding summary judgment dismissing the cause of action which the plaintiff has not challenged, and thus would remain unaffected by any determination on this appeal. Accordingly, we dismiss the appeal as academic (see Armatas v Kestenbaum, 189 AD3d1319, 1321; Katz v Hampton Hills Assoc. Gen. Partnership, 186 AD3d 688, 690; Klam v Klam, 239 AD2d 390, 391).

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