| Giraldo v Morrisey |
| 2009 NY Slip Op 04859 [63 AD3d 784] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Rose Giraldo, Respondent, v Thomas Morrisey et al.,Appellants. |
—[*1] Ira Levine, Great Neck, N.Y. (Joseph C. Angelo of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal froma judgment of the Supreme Court, Queens County (Kitzes, J.), entered March 26, 2008, which,upon an order of the same court dated February 29, 2008, granting, without opposition from thedefendant Melissa Morrisey, the plaintiff's cross motion for summary judgment on the first causeof action, is in favor of the plaintiff and against the defendants in the sum of $40,000. The noticeof appeal from the order is deemed a notice of appeal from the judgment (see CPLR5512 [a]).
Ordered that the appeal by the defendant Melissa Morrisey from the judgment insofar asagainst her is dismissed, as she is not aggrieved thereby (see CPLR 5511); and it isfurther,
Ordered that the judgment insofar as against the defendant Thomas Morrisey is affirmed;and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The defendant Melissa Morrisey is not aggrieved by the judgment in favor of the plaintiff, asshe did not oppose the cross motion which resulted in the order upon which the judgment wasentered (see Ciaccio v Germin, 138 AD2d 664 [1988]).
The Supreme Court properly determined that the plaintiff established, prima facie, herentitlement to summary judgment on her first cause of action to recover damages for breach ofcontract (see Morris v 702 E. Fifth St.HDFC, 46 AD3d 478, 479 [2007]; Funding Partners v RIT Auto LeasingGroup, 288 AD2d 431, 432 [2001]; MBNA Am. Bank v Brenner, 239 AD2d 566[1997]; Furia v Furia, 116 AD2d 694, 695 [1986]). In opposition, the defendant ThomasMorrisey (hereinafter the defendant) failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d557, 562 [1980]; MBNA Am. Bank v Brenner, 239 AD2d 566 [1997]). The defendant'smere hope that further discovery would reveal the existence of triable issues of fact wasinsufficient to delay determination of the plaintiff's cross motion for summary judgment (see Breytman v Olinville Realty, LLC,46 AD3d 484, 485 [2007]; Matuszak v B.R.K. Brands, Inc., 23 AD3d 628 [2005]; Ruttura& Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615 [1999]). Accordingly, theaward of summary judgment in favor of the plaintiff on her first cause of action for $40,000 wasproper. Spolzino, J.P., Santucci, Florio and Balkin, JJ., concur.