Pepper v. Hezghia
| Decision Date | 11 August 2003 |
| Citation | 762 N.Y.S.2d 917,307 A.D.2d 959 |
| Parties | LOUIS PEPPER, Appellant,<BR>v.<BR>FARAJ (FREDDY) HEZGHIA et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that on the Court's own motion, so much of the notice of appeal which purports to appeal as of right from that portion of the order as, sua sponte, imposed a sanction upon the plaintiff is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law and as a matter of discretion, by (1) deleting the provision thereof which, sua sponte, imposed a sanction upon the plaintiff, (2) deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment on the first cause of action insofar as asserted against the defendant Faraj (Freddy) Hezghia, and substituting therefor a provision granting that branch of the motion, (3) deleting the provisions thereof granting those branches of the cross motion of the defendant Vida Hezghia Keypour which were for summary judgment dismissing the first and third causes of action insofar as asserted against her, and substituting therefor provisions denying those branches of the cross motion, and (4), upon searching the record, granting summary judgment to the defendant Faraj (Freddy) Hezghia dismissing the second cause of action in the complaint insofar as asserted against him; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff, the first and third causes of action are reinstated insofar as asserted against the defendant Vida Hezghia Keypour, and the second cause of action is dismissed insofar as asserted against the defendant Faraj (Freddy) Hezghia.
The plaintiff submitted documentary evidence establishing, as a matter of law, his entitlement to summary judgment on the breach of contract claim against the defendant Faraj (Freddy) Hezghia, who, in turn, failed to rebut that showing. Accordingly, the Supreme Court improperly denied that branch of the plaintiff's motion which was for summary judgment on the first cause of action insofar as asserted against Hezghia (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In light of the foregoing, the Supreme Court improvidently exercised its discretion in, sua sponte, imposing a sanction upon the plaintiff, since his motion was not...
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...lease. The failure to fulfill promises to perform acts in the future is merely a breach of contract and not a fraud ( see Pepper v. Hezghia, 307 A.D.2d 959 [2003];Nathanson & Co. v.. Marinello, 192 A.D.2d 575 [1993];Spellman v. Columbia Manicure Mfg. Co., Inc., 111 A.D.2d 320, 322 [1988] ).......
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