Ascoli v. Lynch
| Decision Date | 15 December 2003 |
| Docket Number | 2002-11434. |
| Citation | 2 A.D.3d 553,2003 NY Slip Op 19432,769 N.Y.S.2d 567 |
| Parties | MARIO ASCOLI, Appellant, v. THOMAS LYNCH et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law and the facts, by deleting the provision thereof, in effect, dismissing the first, second, and third causes of action insofar as asserted against the defendant Sunset Limousine, Inc., and substituting therefor a provision awarding the plaintiff the principal sum of $70,295.90 against that defendant on those causes of action; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, together with interest as sought in the complaint.
Pursuant to an agreement signed July 26, 1989 (hereinafter the 1989 agreement), the defendant Sunset Limousine, Inc. (hereinafter Sunset), agreed, inter alia, to make the following payments: (a) $476 per month to the plaintiff from the date of the agreement through December 9, 2002; (b) $3,463.95 owed by Sunset to Southampton Coachworks Ltd. (hereinafter the Southampton debt); and (c) $4,423.83 owed on the plaintiff's Mastercard. The agreement further provided, inter alia, that defendants Thomas Lynch and Joyce Lynch (hereinafter collectively the Lynches) were to hold harmless and indemnify the plaintiff for any failure by Sunset to make the payments, and for Thomas Lynch to pay $5,000 to purchase the plaintiff's shares of stock in Sunset. On July 17, 1992, Sunset issued a $200 check to the plaintiff which carried a restrictive endorsement. The check was the last payment involving Thomas Lynch's individual obligation under the 1989 agreement, for his purchase of the plaintiff's shares of stock in Sunset.
By summons and complaint dated February 23, 1996, the plaintiff commenced this action to recover the aforementioned sums alleging that the defendants, i.e., Sunset and the Lynches, failed to make the payments required by the 1989 agreement. It did not allege any cause of action for indemnification and/or breach of a guarantee. After a nonjury trial, the Supreme Court...
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Sachs v. Zito
...to perform; and (4) resulting damage. [28 Misc.3d 574] See, Furia v. Furia, 116 A.D.2d 694, 498 N.Y.S.2d 12 [1985]; Ascoli v. Lynch, 2 A.D.3d 553, 769 N.Y.S.2d 567 [2003]. On the record presented, the Court is unable to decide these issues as a matter of law nor is it able to determination ......
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...consideration; (3) performance by the Plaintiff; (4) breach by the Defendant; and (5) damages as a result of the breach. Ascoli v. Lynch, 2 A.D.3d 553, 769 N.Y.S.2d 567 (2d Dep't 2003). In the present case, the complaint states each of the above elements, whether or not the plaintiff will b......
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Sudano v. Nayci Contracting Associates, LLC, 2008 NY Slip Op 31877(U) (N.Y. Sup. Ct. 7/3/2008), 0010618/2007.
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