National Recovery Systems v. Zemnovitch

• Citation: 672 N.Y.S.2d 911,250 A.D.2d 742
• Parties: , 1998 N.Y. Slip Op. 4893 NATIONAL RECOVERY SYSTEMS, etc., Appellant, v. Walerij ZEMNOVITCH, Respondent.
• Decision Date: 18 May 1998
• Court: New York Supreme Court — Appellate Division

Page 911

672 N.Y.S.2d 911

250 A.D.2d 742, 1998 N.Y. Slip Op. 4893

NATIONAL RECOVERY SYSTEMS, etc., Appellant, v. Walerij ZEMNOVITCH, Respondent.

Supreme Court, Appellate Division,

Second Department.

May 18, 1998.

Koenig & Samberg, Rockville (Jeffrey M. Samberg, of counsel), for appellant.

Samuel Racer, New York City, for respondent.

Before MANGANO, P.J., and MILLER, PIZZUTO and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover moneys due and owing, the plaintiff appeals from an order of the Supreme Court, Kings County (Demarest, J.), dated June 23, 1997, which denied its motion for summary judgment in lieu of a complaint pursuant to CPLR 3213.

ORDERED that the order is affirmed, with costs.

The defendant allegedly incurred $400,000 in gambling debts at a casino in Aruba and signed a series of notes and checks, more commonly known as "markers" in the gambling industry, totalling $400,000, payable on demand to the plaintiff's assignor. When the defendant refused to honor the markers, the assignor assigned payment of them to the plaintiff. Thereafter, the plaintiff commenced the instant action by filing a summons and motion for summary judgment in lieu of a complaint (see, CPLR 3213).

Originally, the case was assigned to the late Justice Vaccaro, who purportedly granted the plaintiff summary judgment. However, Justice Vaccaro died before signing an order or a decision indicating that he had granted the motion. Thereafter, the case was assigned to Justice Demarest, who decided the motion de novo and denied the plaintiff's application for summary judgment.

We reject the plaintiff's claim that Justice Demarest should have given effect to the late Justice Vaccaro's alleged oral decision by making and signing an order based thereon (see, CPLR 9002). The late Justice Vaccaro's alleged oral decision cannot be the basis for an order signed by another Justice (see, Matter of Holm-Beer v. Holm, 186 A.D.2d 1084, 588 N.Y.S.2d 501; 18 Weinstein-Korn-Miller, N.Y. Civ. Prac. p 9002.01; cf., Metropolitan Life Ins. Co. v. Union Trust Co., 294 N.Y. 254, 62 N.E.2d 59; Schammel v. Schammel, 161 A.D.2d 407, 408, 555 N.Y.S.2d 336; Lindt v. Guggenheim Found., 24 A.D.2d 944, 265 N.Y.S.2d 144, revd. on other grounds 25 N.Y.2d 357, 306 N.Y.S.2d 436, 254 N.E.2d 746).

Furthermore, the Supreme Court correctly denied the plaintiff summary judgment on the gambling "markers" which were allegedly signed by the defendant and upon which the plaintiff now sues. "A...