Cherlin v. Epstein

Appellate Division of the Supreme Court of New York

Cherlin v. Epstein

261 A.D.2d 345, 690 N.Y.S.2d 432, 1999 N.Y. App. Div. LEXIS 5794

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

DecidedMay 27, 1999

StatusPublished

This text of 261 A.D.2d 345 (Cherlin v. Epstein) 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

Cherlin v. Epstein, 261 A.D.2d 345, 690 N.Y.S.2d 432, 1999 N.Y. App. Div. LEXIS 5794 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered. March 30, 1998, which, in an action to recover on a promissory note that defendant gave plaintiff in exchange for plaintiffs equity interest in two corporations, denied plaintiffs motion for summary judgment in lieu of complaint, and directed defendant to serve an answer, unanimously affirmed, with costs.

Summary judgment on the note in issue is precluded by issues of fact. Plaintiff concedes his warranty “that the current outstanding operating expenses of both [corporations] do not exceed $50,000” is intertwined with defendant’s obligation to pay the note. There are factual issues as to whether such amount was intended to include operating expenses that were already outstanding at the time the note was made (see, Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191), and, if so, whether such pre-note operating expenses exceeded $50,000. We reject plaintiffs claim that the schedule of prenote outstanding expenses to which defendant attested in opposition to the motion is not evidence in admissible form, but do not foreclose a motion court from later requiring defendant, prior to trial, to produce documentation of his claim such as bills and canceled checks. Concerning defendant’s counterclaim for fraud, issues of fact exist as to, inter alia, the extent of defendant’s knowledge of the corporations’ day-to-day financial affairs prior to his buying out of plaintiffs interest therein, and the extent to which plaintiff failed to disclose the corporations’ true financial conditions. Concur — Sullivan, J. P., Tom, Wallach, Lerner and Andrias, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered. March 30, 1998, which, in an action to recover on a promissory note that defendant gave plaintiff in exchange for plaintiffs equity interest in two corporations, denied plaintiffs motion for summary judgment in lieu of complaint, and directed defendant to serve an answer, unanimously affirmed, with costs.

Summary judgment on the note in issue is precluded by issues of fact. Plaintiff concedes his warranty “that the current outstanding operating expenses of both [corporations] do not exceed $50,000” is intertwined with defendant’s obligation to pay the note. There are factual issues as to whether such amount was intended to include operating expenses that were already outstanding at the time the note was made (see, Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191), and, if so, whether such pre-note operating expenses exceeded $50,000. We reject plaintiffs claim that the schedule of prenote outstanding expenses to which defendant attested in opposition to the motion is not evidence in admissible form, but do not foreclose a motion court from later requiring defendant, prior to trial, to produce documentation of his claim such as bills and canceled checks. Concerning defendant’s counterclaim for fraud, issues of fact exist as to, inter alia, the extent of defendant’s knowledge of the corporations’ day-to-day financial affairs prior to his buying out of plaintiffs interest therein, and the extent to which plaintiff failed to disclose the corporations’ true financial conditions. Concur — Sullivan, J. P., Tom, Wallach, Lerner and Andrias, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

261 A.D.2d 345, 690 N.Y.S.2d 432, 1999 N.Y. App. Div. LEXIS 5794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherlin-v-epstein-nyappdiv-1999.

Opinion

Related

Cite This Page — Counsel Stack