Estates of Wallkill, Inc. v. Riverview of Highland, Inc.

202 A.D.2d 628, 610 N.Y.S.2d 845, 1994 N.Y. App. Div. LEXIS 2966

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 1994
• Status: Published

Opinion

—In an action to recover a down payment on certain real property, the defendant Riverview of Highland, Inc., appeals from a judgment of the Supreme Court, Orange County (Green, J.), entered December 18, 1991, which, upon an order dated May 1, 1991, granting the plaintiff’s motion for summary judgment, directed foreclosure and sale of the appellant-respondent’s property. The appellant-respondent’s notice of appeal from an order dated November 27, 1991, granting reargument of the plaintiff’s motion for summary judgment, and adhering to the original determination in the order dated May 1, 1991, is deemed a premature notice of appeal from the judgment (CPLR 5520 [c]). The plaintiff has filed a notice of cross appeal from so much of the order of November 27, 1991, as granted reargument.

Ordered that plaintiff’s cross appeal is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The cross appeal from the intermediate order must be dismissed because the right of direct appeal herefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248).

The defendant seller, Riverview of Highland, Inc., defaulted in its obligations under the contract. Thus, in this case, unlike Maxton Bldrs. v Lo Galbo (68 NY2d 373), the plaintiff buyer is entitled to a return of its down payment. Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.