| Webster v Murray |
| 2010 NY Slip Op 00837 [70 AD3d 674] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Scott E. Webster et al., Appellants, v James Murray et al.,Defendants, and Rita Ross Respondent. |
—[*1] The Hilpert Law Offices, Croton-on-Hudson, N.Y. (Robert J. Hilpert and Steven Felsenfeldof counsel), for respondent.
In an action, inter alia, to recover damages for tortious interference with contract andtrespass, the plaintiffs appeal from (1) an order of the Supreme Court, Putnam County(O'Rourke, J.), dated June 18, 2008, which granted those branches of the motion of the defendantRita Ross which were for summary judgment dismissing the complaint insofar as assertedagainst her and for summary judgment on her first counterclaim to recover on a promissory note,and (2) a judgment of the same court entered July 17, 2008, which, upon the order, is in favor ofthe defendant Rita Ross and against them, dismissing the complaint and awarding that defendantthe principal sum of $31,499.32 on the first counterclaim.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The Supreme Court properly granted that branch of the motion of the defendant Rita Rosswhich was for summary judgment dismissing the complaint insofar as asserted against her. Inresponse to Ross' prima facie showing of entitlement to judgment as a matter of law, theplaintiffs failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68NY2d 320 [1986]).
Further, Ross was entitled to summary judgment on her first counterclaim to recover on thepromissory note. She established both the existence of a promissory note executed by theplaintiffs and [*2]their nonpayment according to its terms.Therefore, she demonstrated entitlement to judgment on the balance due (see Simoni vTime-Line, Ltd., 272 AD2d 537, 538 [2000]; Elmsford-Interstate Bldg. Material Corp. vElm Ridge Mgt., 243 AD2d 675 [1997]; Ihmels v Kahn, 126 AD2d 701 [1987]). Itwas then incumbent upon the plaintiffs to demonstrate, by admissible evidence, "the existence ofa triable issue with respect to a bona fide defense" Colonial Commercial Corp. v BreskelAssoc., 238 AD2d 539, 539 [1997]; see Simoni v Time-Line, Ltd., 272 AD2d 537[2000]). They failed to provide such evidence.
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Balkin, Belen andChambers, JJ., concur.
Motion by the appellants on appeals from an order of the Supreme Court, Putnam County,dated June 18, 2008, and a judgment of the same court entered July 17, 2008, inter alia, to strikethe respondent's brief or stated portions of the respondent's brief. By decision and order onmotion dated June 25, 2009, that branch of the motion which was to strike the respondent's briefor stated portions of the respondent's brief was held in abeyance and referred to the panel ofJustices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeals, it is
Ordered that the branch of the motion which was to strike the respondent's brief or statedportions of the respondent's brief is granted to the extent that page A-14 of the Respondent'sAppendix attached to the respondent's brief is stricken and has not been considered on theappeals, and that branch of the motion is otherwise denied. Mastro, J.P., Balkin, Belen andChambers, JJ., concur.
Motion by the appellants on appeals from an order of the Supreme Court, Putnam County,dated June 18, 2008, and a judgment of the same court entered July 17, 2008, inter alia, for leaveto file exhibits to the reply brief. By decision and order on motion dated September 24, 2009,that branch of the motion which was for leave to file exhibits to the reply brief was held inabeyance and referred to the panel of Justices hearing the appeals for determination upon theargument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeals, it is
Ordered that the branch of the motion which was for leave to file exhibits to the reply brief isdenied. Mastro, J.P., Balkin, Belen and Chambers, JJ., concur.