| Lorber v Morovati |
| 2011 NY Slip Op 03038 [83 AD3d 799] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Mark Lorber et al., Respondents, v Mehron Morovati et al.,Appellants. |
—[*1] Law Offices of Marc E. Bengualid, PLLC, New York, N.Y. (Ariella Colman of counsel), forrespondents.
In an action pursuant to CPLR 3213 for summary judgment in lieu of complaint to recovermonies owed on a promissory note, the defendants appeal from a judgment of the SupremeCourt, Queens County (McDonald, J.), dated April 15, 2010, which, upon an order of the samecourt dated September 25, 2009, granting the plaintiffs' motion for summary judgment, an orderof the same court dated December 18, 2009, denying the defendants' motion to consolidate thisaction with an action entitled Jackson Hgts. Dental Group, P.C. v Jackson Hgts. DentalGroup MR, pending in the same court under index No. 20872/09, and an order of the samecourt dated March 3, 2010, granting the plaintiffs' motion for an award of an attorney's fee, is infavor of the plaintiffs and against the defendants in the total sum of $158,434.86.
Ordered that the judgment is reversed, on the law, with costs, the orders dated September 25,2009, December 18, 2009, and March 30, 2010, respectively, are vacated, the plaintiffs' motionfor summary judgment and motion for an award of an attorney's fee are denied, the moving andanswering papers are deemed the complaint and the answer, respectively, and the defendants'motion to consolidate the action with an action entitled Jackson Hgts. Dental Group, P.C. vJackson Hgts. Dental MR, pending in the Supreme Court, Queens County, under index No.20872/09, is granted, and the matter is remitted to the Supreme Court, Queens County, for furtherproceedings, including amendment of the caption to reflect the consolidation.
The Supreme Court erred in awarding the plaintiffs summary judgment, as the promissorynote being sued upon is intertwined with a purchase agreement entered into between the parties.The defendants purchased the plaintiffs' dental practice pursuant to a purchase agreement, whichcontained various contractual obligations owed by the plaintiffs, including, inter alia, anoncompetition covenant, a nonsolicitation covenant, and an agreement to supply the defendantswith the dental practice's patient files, as well as various equipment and other assets. Thedefendants have instituted a separate action in the Supreme Court, Queens County, entitledJackson Hgts. Dental Group, P.C. v Jackson Hgts. Dental MR , under index No.20872/09, alleging, among other things, breach of contract under the purchase agreement andvarious acts of fraud, including retention of credit card proceeds for services rendered by thedefendants.[*2]
While generally the breach of a related contract cannotdefeat a motion for summary judgment on an instrument for money only, that rule does not applywhere, as here, the contract and instrument are intertwined (see Sarantopoulos v E-Z Cash ATM, Inc., 35 AD3d 708, 709-710[2006]; Cohen v Marvlee, Inc., 208 AD2d 792 [1994]; Inpar Bldg. Corp. vVeoukas, 143 AD2d 810 [1988]). As the defendants' action to recover damages for breach ofcontract and fraud relating to the purchase agreement is sufficiently intertwined with theplaintiffs' action to recover on the promissory note, summary judgment should have been denied.Moreover, since the plaintiffs were not entitled to summary judgment, their motion for an awardof an attorney's fee should also have been denied.
In view of the issues of law and fact which this action shares with the aforementioned actionpending in the Supreme Court, Queens County, consolidation is warranted (see CPLR602 [a]). Angiolillo, J.P., Chambers, Austin and Miller, JJ., concur.