| Lowe's Home Ctrs., Inc. v Beachy's Equip. Co., Inc. |
| 2008 NY Slip Op 02279 [49 AD3d 1213] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Lowe's Home Centers, Inc., Plaintiff, v Beachy's EquipmentCompany, Inc., Defendant and Third-Party Plaintiff-Respondent. Anthony James Bechy,Third-Party Defendant-Appellant. |
—[*1] Menter, Rudin & Trivilpiece, P.C., Syracuse (Celia E. Moore of counsel), for third-partyplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Oneida County (John W. Grow, J.), enteredDecember 13, 2006. The judgment, upon the motion of third-party plaintiff for partial summaryjudgment, awarded third-party plaintiff the sum of $13,043.84 together with interest and costsand disbursements against third-party defendant.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action for conversion in September 2005 allegingthat defendant and third-party plaintiff (defendant) was in possession of 16 pieces of plaintiff'sequipment that were delivered to it for repair in 2003 and were never returned to plaintiff. In2003 defendant was owned by third-party defendant, Anthony James Bechy, but in April 2004Richard and Marybeth Petrell purchased 90% of the shares of defendant from Bechy pursuant toa share purchase agreement (Agreement). Defendant commenced a third-party action againstBechy in July 2006 and, after Supreme Court granted plaintiff's motion for summary judgment onthe complaint, defendant moved for partial summary judgment on the first and fourth causes ofaction in the amended third-party complaint. Those causes of action sought, respectively,indemnification for defendant's liability to plaintiff and damages based on Bechy's allegedconversion of a tractor owned by defendant. We conclude that the court properly granteddefendant's motion. We note at the outset, however, that the order from which the appeal wastaken was subsumed in the judgment (see Matter of Amherst Med. Park, Inc. v Amherst Orthopedics, P.C., 31AD3d 1131, 1132 [2006]). Nevertheless, we exercise our discretion to treat the [*2]notice of appeal as valid and deem the appeal as taken from thejudgment (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; seealso CPLR 5520 [c]).
With respect to the first cause of action, defendant met its initial burden by establishing thatBechy breached the Agreement by failing to disclose to the Petrells that defendant had anobligation to plaintiff based on its status as a bailee with respect to the pieces of equipment at thetime that the Petrells and Bechy entered into the Agreement (see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). In opposition to the motion, Bechy did not disputethat defendant had such an obligation and thus failed to raise a triable issue of fact (seegenerally id.). We reject the contention of Bechy that he did not breach the Agreementinasmuch as the Petrells were in fact aware of defendant's obligation to plaintiff. Bechy stated inthe Agreement that defendant had no debts, liabilities, or obligations except as otherwisedisclosed in the Agreement or on the most recent company balance sheet. There is no provisionin the Agreement permitting Bechy to provide oral notification of an outstanding liability orobligation, and Bechy may not introduce parol evidence to add to the terms of the Agreement(see generally W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Bechy'sfurther contention that defendant did not meet its initial burden because it failed to submit certaindocuments is improperly raised for the first time on appeal. "An issue may not be raised for thefirst time on appeal . . . where[, as here,] it 'could have been obviated or cured byfactual showings or legal countersteps' in the trial court" (Oram v Capone, 206 AD2d839, 840 [1994], quoting Telaro v Telaro, 25 NY2d 433, 439 [1969], rearg denied26 NY2d 751 [1970]; see Bingham v New York City Tr. Auth., 99 NY2d 355, 359[2003]).
With respect to the fourth cause of action, defendant met its initial burden byestablishing that Bechy converted a tractor owned by defendant for his own use, and Bechy failedto raise a triable issue of fact (see generally Zuckerman, 49 NY2d at 562).Present—Scudder, P.J., Martoche, Centra, Fahey and Peradotto, JJ.