Gould v. Laufbahn ( 1971 )

Orders of Supreme Court, New York County, entered February 1, 1971 and February 9, 1971, unanimously modified on the law, to sever the first counterclaim interposed by the individual defendants-appellants, and those orders are otherwise affirmed, and the judgment entered thereon on February 18, 1971, is unanimously affirmed; and the separate order of Supreme Court, New York County, entered February 1, 1971, is unanimously affirmed. Respondent shall recover of appellants one bill of $50 costs and disbursements of this appeal. The first two orders appealed from are respectively short form and long form, addressed to the same subject matter, i.e., the granting of partial summary judgment to plaintiff-respondent against the individual defendants-appellants. The third order denied defendants the opportunity to renew opposition to the same motion for summary judgment upon additional evidence, found by Special Term to be insufficient — and we agree. The partial summary judgment granted is based upon promissory notes. An affirmative defense seeking rescission for fraud in bringing about the underlying agreement was also denominated a counterclaim. That defense was not sufficiently established on the motion so as to defeat the notes. The motion did not, however, attack the counterclaim, and we are therefore not called upon to evaluate its sufficiency as such. It is severed accordingly. Concur —• Capozzoli, J. P., Markewich, Kupferman, McNally and Eager, JJ.