Mezan v. D. B. J. Land & Development Corp.

Appellate Division of the Supreme Court of New York

Mezan v. D. B. J. Land & Development Corp.

41 A.D.2d 674, 340 N.Y.S.2d 990, 1973 N.Y. App. Div. LEXIS 5038

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 26, 1973

StatusPublished

This text of 41 A.D.2d 674 (Mezan v. D. B. J. Land & Development Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mezan v. D. B. J. Land & Development Corp., 41 A.D.2d 674, 340 N.Y.S.2d 990, 1973 N.Y. App. Div. LEXIS 5038 (N.Y. Ct. App. 1973).

Pincite

Opinion

.In an action to.recover on a promissory nóte; defendants appeal from. (-1) an order of the Supreme Court, Nassau Countyy dated .Sep- .' tember' 6, 1972,-;which " (a) .granted plaintiff’s motion Tor' summary judgment' . to'-'the extent of-.awarding him $20,0Ó0-. against the corporate defendant and. $4,000 against each of the four individual .defendants, with - interest, and" (b) / severed the counterclaims contained in .the- amended answer, and thé" reply -• .theretoj for trial; and (2) a judgment of the .same court'entered September 11* .1972 .pursuant tó said'order. Judgment reversed, on'the'law;, and order modi-.. -fled, oh.the- law,; by adding thereto a provision that plaintiff’s total recovery, is.' limited to $20,000, with, interest, costs and disbursements, .and:that entry;of judgment shall be stayed pending determination of -the issues raised' in the' counterclaim's. As so modified, order affirmed; Plaintiff is awarded one bill"-' of $20 costs -and disbursements to cover both 'appeals. Since .the. counterclaims allege, inter alla, that the inability-.of the corporate' defendant to pay its obligation is the result, of plaintiff’s. withholding from it-.payment óf a $30,000 [675]*675indebtedness, plaintiff, should, not be allowed to enter a judgment, until-.these issues are resolved (Nopeo Chepi. Co. v. Milner, .12 A D 2d. 942), Further,, the limitation on the amount of' the. recovery' is. designed to avoid, the'possibility .of a; duplication of recovery. Hopkins, Acting P.- J.,' Munder, Latham, Gulotta and Benjamin,-JJ., concur. •

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.In an action to.recover on a promissory nóte; defendants appeal from. (-1) an order of the Supreme Court, Nassau Countyy dated .Sep- .' tember' 6, 1972,-;which " (a) .granted plaintiff’s motion Tor' summary judgment' . to'-'the extent of-.awarding him $20,0Ó0-. against the corporate defendant and. $4,000 against each of the four individual .defendants, with - interest, and" (b) / severed the counterclaims contained in .the- amended answer, and thé" reply -• .theretoj for trial; and (2) a judgment of the .same court'entered September 11* .1972 .pursuant tó said'order. Judgment reversed, on'the'law;, and order modi-.. -fled, oh.the- law,; by adding thereto a provision that plaintiff’s total recovery, is.' limited to $20,000, with, interest, costs and disbursements, .and:that entry;of judgment shall be stayed pending determination of -the issues raised' in the' counterclaim's. As so modified, order affirmed; Plaintiff is awarded one bill"-' of $20 costs -and disbursements to cover both 'appeals. Since .the. counterclaims allege, inter alla, that the inability-.of the corporate' defendant to pay its obligation is the result, of plaintiff’s. withholding from it-.payment óf a $30,000 [675]*675indebtedness, plaintiff, should, not be allowed to enter a judgment, until-.these issues are resolved (Nopeo Chepi. Co. v. Milner, .12 A D 2d. 942), Further,, the limitation on the amount of' the. recovery' is. designed to avoid, the'possibility .of a; duplication of recovery. Hopkins, Acting P.- J.,' Munder, Latham, Gulotta and Benjamin,-JJ., concur. •

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Bluebook (online)

41 A.D.2d 674, 340 N.Y.S.2d 990, 1973 N.Y. App. Div. LEXIS 5038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mezan-v-d-b-j-land-development-corp-nyappdiv-1973.