Affiliated Credit Adjustors, Inc. v. Carlucci & Legum

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before EIBER
• Citation: Affiliated Credit Adjustors, Inc. v. Carlucci & Legum, 527 N.Y.S.2d 426, 139 A.D.2d 611 (N.Y. App. Div. 1988)
• Decision Date: 18 April 1988
• Parties: AFFILIATED CREDIT ADJUSTORS, INC., Respondent-Appellant, v. CARLUCCI & LEGUM, et al., Appellants-Respondents.

Page 426

527 N.Y.S.2d 426

139 A.D.2d 611

AFFILIATED CREDIT ADJUSTORS, INC., Respondent-Appellant, v. CARLUCCI & LEGUM, et al., Appellants-Respondents.

Supreme Court, Appellate Division Second Department.

April 18, 1988.

Grosso, Cordaro & Petrilli, Mineola (Steven G. Legum, of counsel), for appellants-respondents.

Ronald J. Rosenberg, Garden City, for respondent-appellant.

Before EIBER, J.P., and KOOPER, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Oppido, J.), dated April 16, 1987, as, upon reargument and renewal, adhered to its prior determination in an order dated December 8, 1986, to the extent that it granted that branch of the plaintiff's cross motion which was for partial summary judgment on the fifth cause of action in the sum of $5,274.33 plus interest and denied that branch of their motion which was to dismiss the third cause of action for counsel fees, and the plaintiff cross-appeals, as limited by its notice of cross appeal and brief, from so much of the same order as adhered to the prior determination to the extent that it granted that branch of the defendants' motion which was to dismiss the fourth cause of action to recover damages for fraud.

ORDERED that the order dated April 16, 1987, is modified, on the law, by deleting the provision thereof which adhered to the original determination to the extent that it awarded interest to the plaintiff with respect to the $5,274.33 due and owing from the defendants and substituting therefor a provision vacating the provisions of the order dated December 8, 1986, which awarded interest on that sum; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

We find, contrary to the defendants' contention, that the Supreme Court did not err in granting the plaintiff's cross motion for partial summary judgment on the fifth cause of action, prior to the interposition of an answer. The record reveals that the defendants, during the pendency of their motion for reargument and renewal, did interpose an answer to the amended complaint. Accordingly, the defendants' procedural challenge to the propriety of awarding summary relief must fail.

Nor is there merit to the defendants' substantive challenge to the award of partial summary judgment in the plaintiff's favor since the defendants failed to demonstrate the existence of a material issue of fact as to the amount owed under the fifth cause of action. The defendants' conclusory allegations regarding the existence of set-offs against the amount owed does not compel a contrary result since it is apparent from the record that both parties have, since the beginning of their dispute, agreed that the sum of $5,274.33, which had been deposited into an escrow account, was due and owing to the plaintiff. Furthermore, the fact that the answer did not contain any...