Ayer v. Sky Club, Inc.
| Decision Date | 28 June 1979 |
| Parties | , 27 UCC Rep.Serv. 881 Frederick B. AYER, Plaintiff-Appellant-Respondent, v. The SKY CLUB, INC., Defendant-Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
J. I. Kazarnovsky, New York City, for plaintiff-appellant-respondent.
J. J. Maloney, New York City, for defendant-respondent-appellant.
Before KUPFERMAN, J. P., and BIRNS, SULLIVAN, LUPIANO and ROSS, JJ.
Order, Supreme Court, New York County, entered September 12, 1979, which granted plaintiff's motion for summary judgment to the extent of dismissing defendant's counterclaim for the balance due and which granted defendant's cross-motion for summary judgment and dismissed plaintiff's complaint for, Inter alia, reinstatement, modified, on the law, to the extent of reversing the grant of plaintiff's motion for summary judgment dismissing defendant's counterclaim, plaintiff's motion for summary judgment is denied and the grant to plaintiff of costs and disbursements is vacated, and, as so modified, affirmed, without costs and disbursements.
At the outset, it is noted that in moving for summary judgment relief pursuant to CPLR 3212, the parties did not submit a copy of the pleadings and it appears the pleadings have not as yet been filed with the Clerk of the Supreme Court. Ordinarily, this would mandate denial of summary judgment relief as CPLR 3212(b) provides that a motion for summary judgment shall be supported by a copy of the pleadings. Further, we have held that the pleadings are a requisite part of the record of a CPLR 3212 motion and omission of same mandates denial of summary judgment relief (Krasner v. Transcontinental Equities, 64 A.D.2d 551, 407 N.Y.S.2d 625 (1st Dept. 1978)). However, pursuant to stipulation "so ordered" by a Justice of this Court, the parties have been permitted to file a supplemental record on appeal containing a copy of the pleadings. We therefore consider the merits of the motion and cross-motion for summary judgment.
To continue reading
Request your trial
-
Horn Waterproofing Corp. v. Bushwick Iron & Steel Co., Inc.
...(1st Dept.); Continental Information Sys. v. Mutual Life Ins. Co., 77 A.D.2d 316, 432 N.Y.S.2d 952 (4th Dept.); Ayer v. Sky Club, 70 A.D.2d 863, 418 N.Y.S.2d 57 (1st Dept.), appeal dismissed 48 N.Y.2d 705, 422 N.Y.S.2d 68, 397 N.E.2d 758; Kroulee Corp. v. Klein & Co., 103 Misc.2d 441, 426 N......
-
Flambeau Products Corp. v. Honeywell Information Systems, Inc.
...Sys. Corp. v. Mutual Life Ins. Co. of N.Y., 77 App.Div.2d 316, 432 N.Y.S.2d 952 (4th Dept.1980); Ayer v. Sky Club, Inc., 70 App.Div.2d 863, 418 N.Y.S.2d 57 (1st Dept., 1979), appeal dismissed, 48 N.Y.2d 705, 422 N.Y.S.2d 68, 397 N.E.2d 758 (1979).11 The contract provided that it was governe......
-
Stoller v. Commissioner
...Co., Inc., 94 Misc. 2d 15 (Sup. Ct. Alb. Co. 1978). Negotiation of such a check does not effect an accord and satisfaction. Ayer v. Sky Club, Inc., 70 A.D. 2d 863, appeal dismissed 48 N.Y. 2d 705 In the present case, the record does not disclose whether the $1,500 check which was tendered t......
-
Horn Waterproofing, Corp. v. Bushwick Iron & Steel Co., Inc.
...requires dismissal of plaintiff's claim. To the extent that the holding of the Appellate Division, First Department, in Ayer v. Sky Club, 70 A.D.2d 863, 418 N.Y.S.2d 57, app. dsmd. 48 N.Y.2d 705, 422 N.Y.S.2d 68, 397 N.E.2d 758, is to the contrary, we decline to follow it. While the result ......
-
Ucc Section 1-207 on Full Payment Checks: Lawyers Beware
...practice. NOTES _____________________ Footnotes: 1. Kroulee Corp. v. Klein & Co., Inc., 426 N.Y.S.2d 206 (1980); Ayer v. Sky Club, 418 N.Y.S.2d 57 (1979); Scholl v. Tallman, ___S.D.___, 247 N.W.2d 490 (1976). See, Kilander v. Blickle Co., 280 Ore. 425, 571 P.2d 503 (1977), a dictum approval......