Cutter Bayview Cleaners, Inc. v. Spotless Shirts, Inc.
| Decision Date | 16 December 2008 |
| Docket Number | 2008-06110.,2008-05673. |
| Citation | 57 A.D.3d 708,870 N.Y.S.2d 395,2008 NY Slip Op 09943 |
| Parties | CUTTER BAYVIEW CLEANERS, INC., Respondent, v. SPOTLESS SHIRTS, INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff an attorney's fee in the sum of $8,000; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a hearing to determine the amount of a reasonable attorney's fee, and the entry of an appropriate amended judgment thereafter.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff sold a dry cleaning and tuxedo rental business to the defendant pursuant to an asset purchase agreement. As part of the consideration, the defendant executed a promissory note in favor of the plaintiff in the face amount of $190,000. The plaintiff, alleging that the defendant defaulted on the note, commenced this action by way of a motion for summary judgment in lieu of complaint pursuant to CPLR 3213. In opposition, the defendant alleged only that the plaintiff had fraudulently misrepresented that the gross weekly receipts of the business were $10,000. The defendant submitted the affidavit of its president, who averred that, subsequent to the closing, he discovered that, in the two-week period during which the defendant's representatives were on site pursuant to the asset purchase agreement to observe the operations of the business, receipts were falsified to overstate income by the sum of $3,700. He further averred that he spoke with two customers named on particularly large receipts and that they denied having made the transactions reflected by the receipts. The defendant did not, however, submit affidavits from those two alleged customers or explain the absence of such affidavits.
A plaintiff moving for summary judgment in lieu of complaint pursuant to CPLR 3213 based on a promissory note establishes prima facie entitlement to judgment as a matter of law by submitting...
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