CPLR § 3213 Motion for summary judgment in lieu of complaint
Agai v Diontech Consulting, Inc., 2009 NY Slip Op 05839 (App. Div., 2nd, 2009)
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 (see CPLR 5501[a][1]).The plaintiff established his prima facie entitlement to
judgment as a matter of law by submitting proof of the promissory note
and guarantee, and of the defendants' default (see Cutter Bayview Cleaners, Inc. v Spotless Shirts, Inc., 57 AD3d 708; Black Rock, Inc. v Z Best Car Wash, 27 AD3d 409; Brennan v Shapiro, 12 AD3d 547,
549). However, in response, the defendants showed the existence of a
triable issue of fact as to whether money allegedly owed to them in
connection with a project completed by a limited liability corporation
jointly owned by the plaintiff and the defendant Dennis Mihalatos was
retained by the plaintiff in partial satisfaction of the loan [*2]as per a subsequent agreement of the parties. Accordingly, the motion should have been denied (see Cor Rte. 5 Co., LLC v Saracene, 59 AD3d 1006; Khoury v Khoury, 280 AD2d 453).
I posted this case, not because it's particularly profound, but because you don't see too many 3213 appeals.
bruteforcelawyer.com 