McMann v. Ballantyne Marine, Inc.

182 A.D.2d 1131

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1992
• Docket: Appeal No. 1
• Status: Published

Opinion

Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted plaintiff’s motion for summary judgment and did not abuse its discretion in denying defendant’s application for a stay. Plaintiff established his entitlement to summary judgment on the promissory note and defendant failed to present evidentiary proof in admissible form sufficient to raise a triable issue of fact (see, Zuckerman v City of New York, 49 ; Miracle Plywood Corp. v Nepperhan Realty Corp., 171 AD2d 847).

Defendant’s counterclaims, which arise out of plaintiffs alleged conduct as an employee of defendant, are not sufficiently related to the action on the note to preclude summary judgment in plaintiff’s favor (see, Logan v Williamson & Co., 64 AD2d 466, 469-470, appeal dismissed 46 NY2d 996; Santoiemmo v Syracuse Paper & Twine Co., 52 AD2d 721, lv denied 39 NY2d 709), and the record provides no reason to stay execution on plaintiffs judgment (see, Logan v Williamson & Co., supra, at 470; cf., Marx v LaRouche, 152 AD2d 927). (Appeal from Judgment of Supreme Court, Monroe County, Calvaruso, J. — Breach of Contract.) Present — Green, J. P., Pine, Balio, Boehm and Davis, JJ.