Lersch v. Pachinger

Decision Date26 March 1984
Citation100 A.D.2d 617,473 N.Y.S.2d 574
PartiesPeter LERSCH, as executor, etc., Respondent, v. Robert J. PACHINGER, et al., Appellants.
CourtNew York Supreme Court — Appellate Division

James W. Carter, Port Jefferson, for appellants.

Michael Stella, Harrison, for respondent.

Before TITONE, J.P., and GIBBONS, THOMPSON and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Motion by plaintiff for reargument of an appeal from an order of the Supreme Court, Westchester County, entered October 4, 1982, which was determined by a decision and order of this court, both dated January 23, 1984, App.Div., 471 N.Y.S.2d 308, which reversed the order appealed from, granted defendants' motion for renewal and, upon renewal, vacated an order of the same court, entered July 16, 1982, and denied plaintiff's motion for summary judgment.

Motion for reargument granted.

Plaintiff contends that he is entitled to partial summary judgment for $7,500 with interest and costs. His action consists of three causes of action to recover on promissory notes and a dishonored check. Defendants have conceded that there remains a balance due of $7,500 on the only note which they claim remains unpaid. As there is no question of fact with respect to this note, which is the basis of plaintiff's second cause of action, plaintiff is entitled to partial summary judgment on that cause of action. Accordingly, the decision and order of this court in the above-entitled action, both dated January 23, 1984, are recalled and vacated, and the following decision is substituted therefor:

In an action to recover on promissory notes and upon a dishonored check, defendants appeal from an order of the Supreme Court, Westchester County, entered October 4, 1982, which denied their motion for renewal of a prior order of the same court, entered July 16, 1982, which granted plaintiff's motion for summary judgment.

Order reversed, without costs or disbursements, motion for renewal granted and, upon renewal, order entered July 16, 1982 modified, by granting plaintiff's motion for summary judgment as to the second cause of action only, and motion otherwise denied. The matter is remitted to Special Term for entry of a judgment on the second cause of action for $7,500 plus interest at the statutory rate (see CPLR 5004) from May 31, 1981 and the Sheriff of Suffolk County is directed to surrender to the plaintiff the amount of that judgment and to return to the defendant Robert Pachinger $29,237.57 less...

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