Joseph Aragona & Sons, Inc. v. Raymond

150 A.D.2d 433, 540 N.Y.S.2d 738, 1989 N.Y. App. Div. LEXIS 6426

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1989
• Status: Published

Opinion

In an action to foreclose on a mechanic’s lien and to recover damages for breach of contract, the defendants appeal from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered January 15, 1988, as (1) denied their motion for summary judgment, (2) granted the plaintiff’s cross motion for partial summary judgment to the extent of awarding it the sum of $1,000 and (3) failed to provide that the enforcement of any money judgment entered in favor of the plaintiff will be stayed pending entry of a final judgment.

Ordered that the order is modified, as a matter of discretion, by adding thereto a provision that the enforcement of any money judgment entered in favor of the plaintiff will be stayed pending the entry of a final judgment; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court’s granting of partial summary judgment to the plaintiff was not improper. The claim upon which the award in the sum of $1,000 was based is readily severable from the plaintiff’s remaining claims, as well as from the defendants’ counterclaims (see, Dalminter, Inc. v Dalmine, S.p.A., 29 AD2d 852, 853). As a matter of discretion, however, we conclude that the enforcement of this partial award should be stayed pending the entry of a final judgment in the action, in light of the possibility of the defendants obtaining a judgment on their counterclaims. The Supreme Court properly denied the defendants’ motion for summary judgment, since they failed to establish that there is no issue of fact with respect to the plaintiff’s remaining claims and their right to recover on their counterclaims. Thompson, J. P., Bracken, Kunzeman and Spatt, JJ., concur.