D'Urso v. Durso Supermarkets, Inc.

201 A.D.2d 251, 607 N.Y.S.2d 260

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1994
• Status: Published

Opinion

Orders, Supreme Court, New York County (Joan B. Lobis, J.), entered July 6, 1992 and July 1, 1992, which, inter alia, respectively, granted plaintiff’s motion for summary judgment in the amount of $8,196,690.50, and denied defendants’ motion for renewal, unanimously affirmed, with costs.

This case arises out of plaintiff’s sale of the Key Food supermarket chain to defendants, and defendants’ subsequent default on their purchase money obligations incurred in that transaction. The pertinent facts of the transaction were previously summarized by this Court in its decision on a related appeal (Durso Supermarkets v D’Urso, 193 AD2d 377). In the instant case, plaintiff seeks to collect the $8.2 million due to her under the promissory note.

The IAS Court properly awarded plaintiff summary judgment upon the ground that defendants failed to come forward with evidentiary proof sufficient to raise an issue as to defenses to the note, the mortgage and the guarantees (see, National Bank v Alizio, 103 AD2d 690, 691, affd 65 NY2d 788). In granting summary judgment, the IAS Court properly rejected defendants’ argument that, at a minimum, a question of fact exists whether the lease was intended to act as additional security for defendants’ obligation under the note as a result of the cross-default provisions in the mortgage securing the note, and therefore, plaintiff is precluded from recovering what she has already recovered in a related case (see, Durso Supermarkets v D’Urso, supra). In addition, defendants’ argument that the lease was in fact an equitable mortgage securing the note, was not raised before the IAS Court and we decline to reach it. Concur — Murphy, P. J., Sullivan, Carro and Wallach, JJ.