Lersch v. Pachinger

Decision Date23 January 1984
Citation99 A.D.2d 527,471 N.Y.S.2d 308
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.

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, with costs, motion for renewal granted and, upon renewal, order entered July 16, 1982 vacated, and plaintiff's motion for summary judgment denied.

Defendants have established that their motion, denominated as one to reargue was misdesignated and that Special Term should have treated it as one to renew based upon newly discovered evidence (see Estrow v. Wilson, 30 A.D.2d 646, 291 N.Y.S.2d 46; Matter of Onondaga County District Attorney's Office, 92 A.D.2d 32, 35, 459 N.Y.S.2d 507; cf. Roberts v. Connelly, 35 A.D.2d 813, 316 N.Y.S.2d 675). The motion should have been granted and, thereupon, the previous order granting plaintiff's motion for summary judgment should have been vacated and plaintiff's motion denied. Defendants' newly discovered evidence, a check which they allege indicated repayment of one of the promissory notes sued upon, established a genuine triable issue of fact which mandates the denial of summary judgment (see Barrett v. Jacobs, 255 N.Y. 520, 175 N.E. 275; Di Sabato v. Soffes, 9 A.D.2d 297, 300, 193 N.Y.S.2d 184; Horvath v. 305 Park Club Lane, 37 A.D.2d 907, 325 N.Y.S.2d 613).

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