Ku, Fu-Tien v. Gu, Ying Zhi

186 A.D.2d 88

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (William J. Davis, J.), entered February 27, 1992, which, insofar as appealed from, denied defendant’s motion for partial summary judgment without prejudice to renewal upon conclusion of disclosure, unanimously affirmed, without costs. Appeal from the order of the same court, entered May 21, 1992, which denied defendant’s application for ex parte relief is dismissed as nonappealable, without costs.

Defendant moved for summary judgment based upon a general release that discontinued a prior litigation between the parties. The arguments defendant now raises for the first time on her appeal from the denial of that motion, to the effect that plaintiff could not justifiably rely on the misrepresentations alleged to have induced the release, were not raised in the IAS Court and thus are not properly before us. Defendant’s submissions in support of the motion for summary judgment, supported as they were primarily by an attorney’s affirmation, do not conclusively demonstrate this action is barred by the release. The affidavit submitted by plaintiff, on the other hand, raised issues of fact concerning the scope and validity of the release, which were not adequately addressed by defendant’s submissions in support of the motion.

No appeal lies from the denial of defendant’s ex parte application, and the appeal therefrom must be dismissed (see, CPLR 5701 [a]; Matter of Voyticky v Gore, 134 AD2d 354). Concur—Carro, J. P., Kupferman, Ross and Asch, JJ.