Congress Talcott Corp. v. Pacemakers Trading Corp.

177 A.D.2d 459, 576 N.Y.S.2d 555, 1991 N.Y. App. Div. LEXIS 18032

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1991
• Status: Published

Opinion

Order of Supreme Court, New York County (Karla Moskowitz, J.), entered January 28, 1991, which granted plaintiff’s motion for summary judgment, in part, on the issue of defendants’ liability, granted defendants’ cross-motion, in part, only to the extent of directing plaintiff to comply with defendants’ Notice for Discovery and Inspection dated December 5, 1989, and which directed a hearing before a Special Referee on the issues of damages and reasonable attorneys’ fees, unanimously affirmed, without costs.

Plaintiff, a factor, seeks to recover on the personal guarantees of the payment of obligations and liabilities of the defendant Pacemakers and defendants’ attempt to argue that the prior order of this Court on their motion to vacate a default judgment is res judicata on the issue of the viability of their defense is of no avail on this appeal. Defendants themselves limited the issue on that appeal to the conditioning of relief on the posting of an undertaking for the amount demanded in the complaint, and any dicta regarding the viability of defendants’ defense to the action was made upon a different record and in application of a different standard of review. Moreover, the proofs submitted by the defendants in support of the prior application, as well as the proofs submitted in opposition to the summary judgment motion which is the subject of this appeal, are relative to the issue of damages which has been set down for an inquest.

We have considered the remaining arguments of the parties on the appeal and cross-appeal and find them to be without merit. Concur—Sullivan, J. P., Wallach, Smith and Rubin, JJ.