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

Appellate Division of the Supreme Court of the State of New York·Decided October 6, 1998·Published·Cited by 1 cases

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] AD2d 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] AD2d 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.

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).

Pincite

254 A.D.2d 56 (Chemical Bank v. Equity Holding Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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