| Brown Bark II, L.P. v Weiss & Mahoney, Inc. |
| 2011 NY Slip Op 09574 [90 AD3d 963] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Brown Bark II, L.P., Respondent, v Weiss & Mahoney,Inc., Defendant, and Ira T. Weiss, Appellant. |
—[*1] Foster & Wolkind, P.C., New York, N.Y. (Stewart Wolf of counsel), forrespondent.
In an action to recover the proceeds of three loans, the defendant Ira T. Weiss appeals (1)from an order of the Supreme Court, Nassau County (Mahon, J.), entered August 17, 2010,which denied his motion for leave to renew and reargue his opposition to that branch of theplaintiff's motion which was for summary judgment on the complaint insofar as asserted againsthim, which had been granted in an order of the same court dated June 9, 2010, and for leave torenew and reargue his cross motion for summary judgment dismissing the complaint insofar asasserted against him, which had been denied in the order dated June 9, 2010, and (2), as limitedby his brief, from so much of a judgment of the same court dated August 25, 2010, as, upon theorder dated June 9, 2010, is in favor of the plaintiff and against him in the total sum of$239,359.71.
Ordered that the appeal from the order entered August 17, 2010, is dismissed; and it isfurther,
Ordered that the judgment is reversed insofar as appealed from, on the law, that branch of theplaintiff's motion which was for summary judgment on the complaint insofar as asserted againstthe appellant is denied, and the order dated June 9, 2010, is modified accordingly; and it isfurther,
Ordered that one bill of costs is awarded to the appellant.
The appeal from so much of the order entered August 17, 2010, as denied that branch of theappellant's motion which was for leave to reargue must be dismissed, as no appeal lies from anorder denying reargument. The appeal from so much of the order entered August 17, 2010, asdenied that branch of the appellant's motion which was for leave to renew must be dismissed,because the right of direct appeal therefrom terminated with the entry of judgment in the action(see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from thatportion of the order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).[*2]
Contrary to the plaintiff's contention, the appeal from thefinal judgment brings up for review the prior order dated June 9, 2010, which, inter alia, grantedits motion for summary judgment on the complaint insofar as asserted against the defendant IraT. Weiss (hereinafter the appellant) (seee.g. Lancer Ins. Co. v Marine Motor Sales, Inc., 84 AD3d 1318 [2011]; Futersak v Perl, 84 AD3d 1309[2011]; Sullivan v Nimmagadda, 63AD3d 908 [2009]).
On the merits, the plaintiff failed to establish its entitlement to judgment as a matter of lawagainst the appellant, as alleged personal guarantor of the loans. An agreement to "answer for thedebt, default or miscarriage of another person" must be in writing and subscribed by the party tobe charged (General Obligations Law § 5-701 [a] [2]). The sole copy of a promissory notesubmitted by the plaintiff and executed by the appellant contained no personal guarantee, andcontained an integration clause stating that "[t]he Loan Documents supersede all prioragreements between the parties with respect to the Loan." The plaintiff did not establish, as amatter of law, that those loan documents included a personal guarantee. With respect to the firstand third loans, the promissory notes were lost, and the affidavits of lost instruments did notinclude a copy of a form promissory note, assuming such a form was used. It was the plaintiff'sburden to establish the terms of the lost instruments (see Marrazzo v Piccolo, 163 AD2d369 [1990]). Accordingly, the Supreme Court erred in granting that branch of the plaintiff'smotion which was for summary judgment on the complaint insofar as asserted against theappellant.
The parties' remaining contentions are without merit or need not be addressed in light of ourdetermination. Rivera, J.P., Eng, Roman and Sgroi, JJ., concur.