ABC Meats, Inc. v. Marine Midland Bank

Appellate Division of the Supreme Court of New York

ABC Meats, Inc. v. Marine Midland Bank

158 A.D.2d 918, 551 N.Y.S.2d 84, 1990 N.Y. App. Div. LEXIS 1417

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 1990

StatusPublished

This text of 158 A.D.2d 918 (ABC Meats, Inc. v. Marine Midland Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

ABC Meats, Inc. v. Marine Midland Bank, 158 A.D.2d 918, 551 N.Y.S.2d 84, 1990 N.Y. App. Div. LEXIS 1417 (N.Y. Ct. App. 1990).

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Opinion

We conclude that Supreme Court properly directed a substitution of parties. The 1983 agreement, reasonably construed, transferred all assets of Shop the ABC Way except accounts receivable.

The court erred, however, in imposing a conditional order of preclusion upon Wholesale Foods for two reasons. First, defendant did not seek to preclude Wholesale Foods; it sought to preclude ABC Meats based upon that party’s failure to respond adequately to a second set of interrogatories. Second, the interrogatories were not served upon Wholesale Foods, and Wholesale Foods was not a party to the action. Wholesale Foods was not subject to a CPLR 3126 order of preclusion (see, Durst, Fuchsberg and Kleiner, Modern New York Discovery § 16:17). (Appeal from order of Supreme Court, Erie County, Joslin, J. — substitute party.) Present — Dillon, P. J., Denman, Green, Balio and Lawton, JJ.

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We conclude that Supreme Court properly directed a substitution of parties. The 1983 agreement, reasonably construed, transferred all assets of Shop the ABC Way except accounts receivable.

The court erred, however, in imposing a conditional order of preclusion upon Wholesale Foods for two reasons. First, defendant did not seek to preclude Wholesale Foods; it sought to preclude ABC Meats based upon that party’s failure to respond adequately to a second set of interrogatories. Second, the interrogatories were not served upon Wholesale Foods, and Wholesale Foods was not a party to the action. Wholesale Foods was not subject to a CPLR 3126 order of preclusion (see, Durst, Fuchsberg and Kleiner, Modern New York Discovery § 16:17). (Appeal from order of Supreme Court, Erie County, Joslin, J. — substitute party.) Present — Dillon, P. J., Denman, Green, Balio and Lawton, JJ.

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Bluebook (online)

158 A.D.2d 918, 551 N.Y.S.2d 84, 1990 N.Y. App. Div. LEXIS 1417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abc-meats-inc-v-marine-midland-bank-nyappdiv-1990.

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