| Talon Air, Inc. v Kevin Francis Madden |
| 2011 NY Slip Op 00501 [80 AD3d 746] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Talon Air, Inc., Respondent, v Kevin Francis Madden,Appellant. |
—[*1] John Ramsen, Great Neck, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from(1) an order of the Supreme Court, Nassau County (Lally, J .), entered April 7, 2010, whichgranted the plaintiff's motion for summary judgment on the complaint and dismissing thecounterclaim, and denied his cross motion for summary judgment on the counterclaim anddismissing the complaint, and (2) a judgment of the same court entered May 13, 2010, which,upon the order, is in favor of the plaintiff and against him in the principal sum of $98,551.34.The notice of appeal from the order is deemed also to be a notice of appeal from the judgment(see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, on the law, (1) by deleting from the first decretalparagraph thereof the provision awarding the plaintiff the total sum of $53,762.34 on the thirdcause of action; (2) by deleting from the first decretal paragraph thereof the provision awardingthe plaintiff the total sum of $98,551.31; and (3) by deleting the second decretal paragraphthereof dismissing the defendant's counterclaim; as so modified, the judgment is affirmed,without costs or disbursements, those branches of the plaintiff's motion which were for summaryjudgment on the third cause of action and dismissing the counterclaim are denied, the orderentered April 7, 2010, is modified accordingly, and the matter is remitted to the Supreme Court,Nassau County, for the severance of the third cause of action and the counterclaim from theremaining causes of action and the entry of an amended judgment accordingly.
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, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1];Ilardi v Inte-Fac Corp., 290 AD2d 490 [2002]).[*2]
In the first and second causes of action, the plaintiffsought to recover damages, inter alia, for breach of contract. In the third cause of action, theplaintiff sought to recover the sum of $50,000 for use and occupancy based upon rental paymentsthat it allegedly made on the defendant's behalf. The defendant asserted a counterclaim to recoverunpaid wages and compensation. In an order entered April 7, 2010, the Supreme Court grantedthe plaintiff's motion for summary judgment on the complaint and dismissing the counterclaim,and denied the defendant's cross motion for summary judgment on the counterclaim anddismissing the complaint. Upon the order, judgment was entered in favor of the plaintiff andagainst the defendant in the principal sum of $98,551.34.
As to those branches of its motion which were for summary judgment on the first and secondcauses of action, the plaintiff established its prima facie entitlement to judgment as a matter oflaw (see Giraldo v Morrisey, 63AD3d 784, 785 [2009]; Morris v702 E. Fifth St. HDFC, 46 AD3d 478, 479 [2007]; Funding Partners v RIT AutoLeasing Group, 288 AD2d 431, 432 [2001]). In opposition, the defendant failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckermanv City of New York, 49 NY2d 557, 562 [1980]; MBNA Am. Bank v Brenner, 239AD2d 566 [1997]). The defendant's mere hope that further discovery would reveal the existenceof triable issues of fact was insufficient to delay determination of those branches of the plaintiff'smotion (see Breytman v OlinvilleRealty, 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]).
However, the Supreme Court erred in granting those branches of the plaintiff's motion whichwere for summary judgment on the third cause of action and dismissing the counterclaim. Theplaintiff's submissions relating to the third cause of action failed to establish its prima facieentitlement to judgment as a matter of law based upon the existence of any agreement, written orotherwise, which required the defendant to repay the plaintiff for any rental payments that theplaintiff may have made on the defendant's behalf (cf. Roccanova v Aussino [USA], Inc., 76 AD3d 522 [2010]). Inaddition, the plaintiff failed to submit competent evidence demonstrating, prima facie, that it hadactually made any rental payments on the defendant's behalf, or that there was a landlord-tenantrelationship between the parties (seeReads Co., LLC v Katz, 72 AD3d 1054, 1055-1056 [2010]). Since the plaintiff did nottender "sufficient evidence to demonstrate the absence of any material issues of fact"(Alvarez v Prospect Hosp., 68 NY2d at 324) on the third cause of action, it failed to meetits prima facie burden. While the plaintiff met its prima facie burden of demonstrating itsentitlement to judgment as a matter of law dismissing the counterclaim, the defendant raised atriable issue of fact in opposition.
The defendant's remaining contentions are without merit.
Accordingly, the matter must be remitted to the Supreme Court, Nassau County, for theseverance of the third cause of action and the counterclaim from the remaining causes of action,and the entry of an amended judgment in connection with the first and second causes of action.Dickerson, J.P., Leventhal, Hall and Austin, JJ., concur.