Hollstegge v. Tortorici

120 A.D.2d 333, 501 N.Y.S.2d 824, 1986 N.Y. App. Div. LEXIS 56472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 1986
• Status: Published

Opinions

— Order of the Supreme Court, New York County, entered on or about July 12, 1984 (Bruce Wright, J.), which granted plaintiffs motion for summary judgment against the defendant-appellant Tortorici, modified, on the law, and the motion denied and the said defendant-appellant granted leave to interpose affirmative defenses, without costs.

In April 1983, the plaintiff sued the defendant-appellant Tortorici, individually and as president of Seasons End, Inc., a defendant which is not an appellant on this motion, to recover monetary damage in the amount of $20,000 as a payment in consideration of a restrictive covenant.

It is alleged that the plaintiff and defendants agreed, in a handwritten contract entitled "Restrictive Covenance”, that if the plaintiff did not engage in the "Restaurant and/or Bar Business” within three blocks of 323 East 79th Street, Manhattan, for a period of three years, plaintiff would be paid $20,000 within "six (6) months * * * of [the] closing of title”.

The plaintiff was the manager of such a business at the address indicated, and by a separate agreement of December 8, 1981, Tortorici purchased the business and fixtures, etc., from 323 East 79th Street Rest. Inc. The "Restrictive Covenance” is undated and separate but refers to the December 8, 1981 agreement.

Seasons End, Inc., asserts the affirmative defense that Tortorici did not have the capacity to enter into the restrictive arrangement for it, while Tortorici counters that he did not act individually but only on behalf of Seasons End, Inc. There seems to be a divergence of interest at the present time between Tortorici and Seasons End, Inc.

Plaintiff moved for summary judgment, alleging that the closing of title was completed by August 12, 1982 and his compliance with the restriction and a failure to pay, in accordance therewith, within six months. Defendant-appellant Tortorici cross-moved for summary judgment, alleging a breach of the restriction by the plaintiff engaging in the prohibited business at "Turtles”, a restaurant at 1563 York Avenue, within the proscribed area, and alleging further that title never closed, because a certain indebtedness and taxes and fines and electricity bills had not been paid, resulting in eviction.

The court at Special Term granted summary judgment against Tortorici, individually, and he appealed.

The affirmative defense of failure to close title and failure to comply with the restrictive covenant was sought to be pleaded by Seasons End, Inc., but permission was granted by Special Term only for the affirmative defense of breach of the contract.

The affidavit of defendant-appellant Tortorici, in opposition to summary judgment, sets forth the situation which raises issues of fact with respect to both closing of title and compliance with the restriction. Although not specifically pleaded, they may be taken into consideration on this motion. (See, Phillips v Kantor & Co., 31 NY2d 307, 311; Byer, Civil Motions § 324d [4] [1984].)

Permission is granted to plead the affirmative defenses and the motion for summary judgment should be denied. Concur— Kupferman, J. P., Ross and Carro., JJ.