New York Surety Co. v. Costello

Appellate Division of the Supreme Court of New York

New York Surety Co. v. Costello

245 A.D.2d 352, 665 N.Y.S.2d 683, 1997 N.Y. App. Div. LEXIS 12790

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

DecidedDecember 8, 1997

StatusPublished

This text of 245 A.D.2d 352 (New York Surety Co. v. Costello) 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

New York Surety Co. v. Costello, 245 A.D.2d 352, 665 N.Y.S.2d 683, 1997 N.Y. App. Div. LEXIS 12790 (N.Y. Ct. App. 1997).

Pincite

Opinion

—In an action to recover payment under the terms of an indemnity contract, the defendant Joseph Costello appeals from (1) an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated June 21, 1996, which granted summary judgment to the plaintiff, and (2) a judgment of the same court, entered August 20, 1996, in favor [353]*353of the plaintiff and against him in the principal sum of $76,024.59.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

Contrary to the defendant’s contention, the papers submitted in opposition to the plaintiff’s motion for summary judgment and the claims therein, submitted by the defendant’s attorney, a person without actual knowledge of the facts, were not based on documentary evidence. As such, they were insufficient to rebut the plaintiff’s prima facie case and defeat the motion (see, Akane Corp. v Fujimichi, 184 AD2d 300, 301; Sheahan v County of Suffolk, 109 AD2d 832, 833; Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561, affd 54 NY2d 715). Bracken, J. P., Sullivan, Santucci and Luciano, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In an action to recover payment under the terms of an indemnity contract, the defendant Joseph Costello appeals from (1) an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated June 21, 1996, which granted summary judgment to the plaintiff, and (2) a judgment of the same court, entered August 20, 1996, in favor [353]*353of the plaintiff and against him in the principal sum of $76,024.59.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

Contrary to the defendant’s contention, the papers submitted in opposition to the plaintiff’s motion for summary judgment and the claims therein, submitted by the defendant’s attorney, a person without actual knowledge of the facts, were not based on documentary evidence. As such, they were insufficient to rebut the plaintiff’s prima facie case and defeat the motion (see, Akane Corp. v Fujimichi, 184 AD2d 300, 301; Sheahan v County of Suffolk, 109 AD2d 832, 833; Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561, affd 54 NY2d 715). Bracken, J. P., Sullivan, Santucci and Luciano, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

245 A.D.2d 352, 665 N.Y.S.2d 683, 1997 N.Y. App. Div. LEXIS 12790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-surety-co-v-costello-nyappdiv-1997.

Opinion

Related

Cite This Page — Counsel Stack