Knox v Rose, 2021 NY Slip Op 00161 [190 AD3d 712]

January 13, 2021

Appellate Division, Second Department

[*1]

Daniel Knox, Respondent,

v

Gary H. Rose, Appellant.

Lambert & Shackman, PLLC, New York, NY (Thomas C. Lambert of counsel), for appellant.

In an action to recover damages for conversion and abuse of process, the defendant appeals from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), dated January 11, 2018. The order, insofar as appealed from, denied the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

In October 2016, the plaintiff commenced this action, inter alia, to recover damages for conversion after his vehicle was booted and then towed by the defendant, a New York City Marshal.

Under the circumstances of this case, although the defendant’s failure to submit a copy of the pleadings with his motion for summary judgment did not require denial of the motion ( see CPLR 3212 [b]; Lombardi v Lombardi , 127 AD3d 1038 , 1040 [2015]), the defendant failed to make a prima facie showing of his entitlement to summary judgment ( see UB Distribs., LLC v S.K.I. Wholesale Beer Corp. , 161 AD3d 1027 , 1028 [2018]; Parr Meadows Racing Assn. v White , 76 AD2d 858, 858 [1980]).

The defendant’s remaining contention is without merit.

Accordingly, we agree with the Supreme Court’s determination to deny the defendant’s motion, regardless of the sufficiency of the plaintiff’s opposition papers ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985]). Dillon, J.P., Austin, Duffy and Barros, JJ., concur..