Capital One Bank v. Koralik

I respectfully dissent and vote to reverse the order appealed from, in which the court sua sponte granted plaintiff’s motion for summary judgment, on plaintiff’s second cause of action for an account stated—relief not sought by plaintiff in its motion. Based upon the moving papers, due process requirements, the rules of evidence, well-settled principles governing motions for summary judgment *78and fundamental fairness, plaintiff’s motion for summary judgment should have been denied.1

Lack of Notice

Significantly, as the majority acknowledges, the relief ultimately granted by the lower court in…