| Brown Bark I, L.P. v Imperial Dev. & Constr. Corp. |
| 2009 NY Slip Op 06112 [65 AD3d 510] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Brown Bark I, L.P., Respondent, v Imperial Developmentand Construction Corp. et al., Appellants. |
—[*1] Foster & Wolkind, P.C., New York, N.Y. (Stewart Wolf of counsel), forrespondent.
In an action, inter alia, to recover on a promissory note and individual guaranties thereof, thedefendant Leila Khan appeals, as limited by her brief, (1) from so much of an order of theSupreme Court, Queens County (Dollard, J.), entered December 6, 2007, as granted that branchof the plaintiff's motion which was for summary judgment on the complaint insofar as assertedagainst her, (2) from so much of a judgment of the same court entered December 14, 2007, as,upon the order entered December 6, 2007, is in favor of the plaintiff and against her in theprincipal sum of $198,135, and (3) from so much an order of the same court entered June 26,2008, as denied her motion for leave to renew her opposition to that branch of the plaintiff's priormotion which was for summary judgment on the complaint insofar as asserted against her; andthe defendants Imperial Development and Construction Corp. and Zaffaula Khan, also known asZaff Khan, also appeal from the same orders and judgment.
Ordered that the appeals by the defendants Imperial Development and Construction Corp.and Zaffaula Khan, also known as Zaff Khan, are dismissed as abandoned (see 22NYCRR 670.8 [e]); and it is further,
Ordered that the appeal by the defendant Leila Khan from the order entered December 6,2007, is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from by the defendant Leila Khan;and it is further,[*2]
Ordered that the order entered June 26, 2008, is affirmedinsofar as appealed from by the defendant Leila Khan; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal by the defendant Leila Khan from the intermediate order entered December 6,2007, must be dismissed because the right of direct appeal therefrom terminated with the entry ofjudgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raisedon appeal from that order are brought up for review and have been considered on the appeal byLeila Khan from the judgment (see CPLR 5501 [a] [1]).
In support of that branch of its motion which was for summary judgment on the complaintinsofar as asserted against the defendant Leila Khan (hereinafter Mrs. Khan), the plaintiff made aprima facie showing of entitlement to judgment as a matter of law. In opposition thereto, Mrs.Khan claimed that her signature on the individual guaranty was a forgery. However, her bare,self-serving claim to that effect was insufficient to raise a triable issue of fact (see North Fork Bank Corp. v GraphicForms Assoc., Inc., 36 AD3d 676 [2007]; Acme Am. Repairs, Inc. v Uretsky, 39 AD3d 675, 677 [2007]; JPMorgan Chase Bank v Gamut-Mitchell,Inc., 27 AD3d 622, 622-623 [2006]; cf. Diplacidi v Gruder, 135 AD2d 395,395-396 [1987]). Accordingly, the Supreme Court properly granted that branch of the plaintiff'smotion which was for summary judgment on the complaint insofar as asserted against Mrs.Khan.
In addition, the Supreme Court properly denied Mrs. Khan's subsequent motion for leave torenew her opposition to that branch of the plaintiff's prior motion which was for summaryjudgment on the complaint insofar as asserted against her. In support of her motion, Mrs. Khanproffered an affidavit from a purported expert "document examiner." However, Mrs. Khan failedto offer a reasonable justification for failing to present this evidence in opposition to theplaintiff's original motion (see CPLR 2221 [e]; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533 [2007]).Her contentions that she did not know that she needed to submit an expert opinion regarding theforgery claim, and did not want to incur unnecessary litigation expenses at the time of the earlieropposition to the summary judgment motion, do not constitute reasonable justification. She wasrepresented by counsel at the time the original motion was made (see Reshevsky v UnitedWater N.Y., Inc., 46 AD3d at 533). In any event, under the circumstances presented, theconclusory affidavit of the purported expert, which failed to set forth any analytical basis for hisconclusion that the signature on the guaranty at issue was not Mrs. Khan's genuine signature,was insufficient to warrant a change of the prior determination (see Ioffe v Hampshire House Apt. Corp.,21 AD3d 930, 931 [2005]). Miller, J.P., Angiolillo, Eng and Austin, JJ., concur.