Josephs v. Gaines

237 A.D.2d 572, 655 N.Y.S.2d 994, 1997 N.Y. App. Div. LEXIS 2991

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1997
• Status: Published

Opinion

In two related actions, inter alia, to recover damages for breach of a partnership agreement and conversion of partnership funds, Spencer Gaines and Jacqueline Nalitt, co-executors of the estate of Sanford Nalitt, appeal from so much of a judgment of the Supreme Court, Rockland County (Meehan, J.), dated May 18, 1995, as, upon an order of the same court dated May 4, 1995, which, inter alia, granted the plaintiffs’ motion for partial summary judgment on the first cause of action in Action No. 2, is in favor of the plaintiffs and against them in the principal sum of $213,957. The appeal brings up for review so much of an order of the same court, dated October 30, 1995, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the judgment is dismissed, as the judgment was superseded by the order dated October 30, 1995, made upon reargument; and it is further,

Ordered that the order dated October 30, 1995, is affirmed insofar as reviewed; and it is further,

Ordered that the respondents are awarded one bill of costs.

We agree with the Supreme Court that the record presents no triable issues of fact as to the plaintiffs’ first cause of action in Action No. 2 (see, Zuckerman v City of New York, 49 NY2d 557). The appellants’ counterclaims, asserted late in this litigation, are not so inseparable from the plaintiffs’ first cause of action that entry of judgment on that cause of action- prejudiced the appellants (see, Standard Microsystems Corp. v Access Data Prods., 138 AD2d 479).

The appellants’ remaining contentions are without merit. Rosenblatt, J. P., O’Brien, Copertino and Goldstein, JJ., concur.