Petrina Enterprises, Ltd. v. Republic Carting Co.

90 A.D.2d 539, 455 N.Y.S.2d 109, 1982 N.Y. App. Div. LEXIS 18593

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1982
• Status: Published

Opinion

In an action to recover damages for breach of contract, plaintiff appeals and defendant cross-appeals from an order of the Supreme Court, Queens County (Rodell, J.), dated August 6,1981, which, inter alia, failed to grant plaintiff’s motion for summary judgment and failed to order a hearing, pursuant to the Uniform Commercial Code, as to the economic enforceability of the alleged contract. Cross appeal dismissed for failure to properly perfect, without costs or disbursements. Order reversed and provision purporting to transfer this plenary action to the Appellate Division, First Department, is deleted, without costs or disbursements. Plaintiff’s motion for summary judgment, which was not decided by Special Term, denied. In support of its motion for summary judgment, plaintiff relies upon the collateral estoppel effect of the Department of Consumer Affairs determination finding that a contract existed between plaintiff and defendant and that defendant had violated the contract. Inasmuch as a review of that determination is currently pending before the Appellate Division, First Department, a judgment against defendant upon those grounds would be premature. To the extent that the order purports to transfer this plenary action to the Appellate Division of another department where a related article 78 proceeding is pending, we disagree with Special Term’s disposition. Since the instant action is not an article 78 proceeding, there was no basis for transfer. Additionally, there is no authority for Special Term sitting in Queens County to transfer cases to another department’s Appellate Division. Contrary to the statement at oral argument by counsel for the defendant, the cross appeal was not properly perfected (see Cooper v Bosse, 85 AD2d 616; 22 NYCRR 670.8). Lazer, J. P., Gibbons, Thompson and Bracken, JJ., concur.