Wagner v. Triefler

Appellate Division of the Supreme Court of New York

Wagner v. Triefler

215 A.D.2d 648, 628 N.Y.S.2d 503, 1995 N.Y. App. Div. LEXIS 5485

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

DecidedMay 22, 1995

StatusPublished

Cited by2 cases

This text of 215 A.D.2d 648 (Wagner v. Triefler) 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

Wagner v. Triefler, 215 A.D.2d 648, 628 N.Y.S.2d 503, 1995 N.Y. App. Div. LEXIS 5485 (N.Y. Ct. App. 1995).

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Opinion

In an action, inter alia, to recover on a promissory note, the defendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Queens County (Dunkin, J.), dated May 24, 1993, as granted partial summary judgment to the plaintiff on his first five causes of action, and (2) so much of the judgment entered September 10, 1993, as was entered thereon.

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

Ordered that the judgment is affirmed insofar as appealed from; 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 appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The plaintiff proved his entitlement to judgment as a matter of law by submitting, in support of his motion, proof of a [649]*649promissory note and guaranty, and of the defendants’ failure to make the payments provided for by their terms (see, Governor & Co. of Bank of Ireland v Dromoland Castle, 212 AD2d 759; Gateway State Bank v Shangri-La Private Club for Women, 113 AD2d 791, affd 67 NY2d 627; Silber v Muschel, 190 AD2d 727). Accordingly, it was incumbent upon the defendants to come forward with proof in admissible form of the existence of triable issues of fact (see, Gateway State Bank v Shangri-La Private Club for Women, supra). However, the defendants’ unsubstantiated and conclusory allegations failed to raise triable issues of fact which would have precluded the court from granting the plaintiffs motion.

The defendants’ remaining contentions are without merit. Mangano, P. J., Sullivan, Thompson and Hart, JJ., concur.

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In an action, inter alia, to recover on a promissory note, the defendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Queens County (Dunkin, J.), dated May 24, 1993, as granted partial summary judgment to the plaintiff on his first five causes of action, and (2) so much of the judgment entered September 10, 1993, as was entered thereon.

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

Ordered that the judgment is affirmed insofar as appealed from; 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 appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The plaintiff proved his entitlement to judgment as a matter of law by submitting, in support of his motion, proof of a [649]*649promissory note and guaranty, and of the defendants’ failure to make the payments provided for by their terms (see, Governor & Co. of Bank of Ireland v Dromoland Castle, 212 AD2d 759; Gateway State Bank v Shangri-La Private Club for Women, 113 AD2d 791, affd 67 NY2d 627; Silber v Muschel, 190 AD2d 727). Accordingly, it was incumbent upon the defendants to come forward with proof in admissible form of the existence of triable issues of fact (see, Gateway State Bank v Shangri-La Private Club for Women, supra). However, the defendants’ unsubstantiated and conclusory allegations failed to raise triable issues of fact which would have precluded the court from granting the plaintiffs motion.

The defendants’ remaining contentions are without merit. Mangano, P. J., Sullivan, Thompson and Hart, JJ., concur.

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Bluebook (online)

215 A.D.2d 648, 628 N.Y.S.2d 503, 1995 N.Y. App. Div. LEXIS 5485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-triefler-nyappdiv-1995.

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