Chemical Bank v. Equity Holding Corp.

Appellate Division of the Supreme Court of New York

Chemical Bank v. Equity Holding Corp.

254 A.D.2d 56, 679 N.Y.S.2d 277, 1998 N.Y. App. Div. LEXIS 10034

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

DecidedOctober 6, 1998

StatusPublished

Cited by1 cases

This text of 254 A.D.2d 56 (Chemical Bank v. Equity Holding Corp.) 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

Chemical Bank v. Equity Holding Corp., 254 A.D.2d 56, 679 N.Y.S.2d 277, 1998 N.Y. App. Div. LEXIS 10034 (N.Y. Ct. App. 1998).

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Opinion

Judgment, Supreme Court, New York County (Carol Huff, J.), entered July 30, 1997, in favor of plaintiff and against defendants, and bringing up for review an order which granted plaintiff’s motion for summary judgment on its second cause of action for mistaken payment, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about July 7,1997, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

We agree with the IAS Court that no issue of fact exists as to whether plaintiff’s payment to defendants of the certificate of deposit in question, which had been assigned to third-party defendant with notice to plaintiff, was a mistake (see, Manufacturers Hanover Trust Co. v Chemical Bank, 160 AD2d 113, 117, lv denied 77 NY2d 803). Plaintiff’s second summary judgment motion was impliedly permitted by the denial of the first motion as premature, and moreover was based on new evidence gained by discovery that was explicitly anticipated in the first motion (see, Smith v Metropolitan Transp. Auth., 226 [57]*57AD2d 168, lv denied 89 NY2d 803, cert denied sub nom. Smith v Metro-North Commuter R. R., 520 US 1186). Concur — Rosenberger, J. P., Ellerin, Wallach and Williams, JJ.

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Judgment, Supreme Court, New York County (Carol Huff, J.), entered July 30, 1997, in favor of plaintiff and against defendants, and bringing up for review an order which granted plaintiff’s motion for summary judgment on its second cause of action for mistaken payment, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about July 7,1997, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

We agree with the IAS Court that no issue of fact exists as to whether plaintiff’s payment to defendants of the certificate of deposit in question, which had been assigned to third-party defendant with notice to plaintiff, was a mistake (see, Manufacturers Hanover Trust Co. v Chemical Bank, 160 AD2d 113, 117, lv denied 77 NY2d 803). Plaintiff’s second summary judgment motion was impliedly permitted by the denial of the first motion as premature, and moreover was based on new evidence gained by discovery that was explicitly anticipated in the first motion (see, Smith v Metropolitan Transp. Auth., 226 [57]*57AD2d 168, lv denied 89 NY2d 803, cert denied sub nom. Smith v Metro-North Commuter R. R., 520 US 1186). Concur — Rosenberger, J. P., Ellerin, Wallach and Williams, JJ.

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Bluebook (online)

254 A.D.2d 56, 679 N.Y.S.2d 277, 1998 N.Y. App. Div. LEXIS 10034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chemical-bank-v-equity-holding-corp-nyappdiv-1998.

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