Cafaro v. Squitieri

290 A.D.2d 472, 736 N.Y.S.2d 251, 2002 N.Y. App. Div. LEXIS 605

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 2002
• Status: Published

Opinion

In an action to recover on a promissory note brought by motion for summary judgment in lieu of a complaint pursuant to CPLR 3213, the defendants appeal from (1) an order of the Supreme Court, Kings County (Steinhardt, J.), dated March 15, 2001, which granted the motion, and (2) a judgment of the same court, entered April 25, 2001, which is in favor of the plaintiff and against them in the principal sum of $96,740.36.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the order dated March 15, 2001, is vacated, the motion is denied, the action is reinstated, and the moving and answering papers are deemed to be the complaint and the answer, respectively; and it is further,

Ordered that the defendants are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The defendants raised a triable issue of fact as to whether failure of consideration constitutes a valid defense to the promissory note (see, Tibball v Catalanotto, 269 AD2d 386; Goodman, Rakower & Agiato v Lieberman, 226 AD2d 343; Eurotech Dev. v Adirondack Pennysaver, 224 AD2d 738, 739). Accordingly, the motion for summary judgment in lieu of a complaint should have been denied (cf., MDJR Enters. v LaTorre, 268 AD2d 509). Altman, J.P., O’Brien, Goldstein and H. Miller, JJ., concur.