Lersch v. Pachinger

Motion by plaintiff for reargument of an appeal from an order of the Supreme Court, Westchester County (Ferraro, J.), entered October 4,1982, which was determined by a decision and order of this court, both dated January 23, 1984, which reversed the order appealed from, granted defendants’ motion for renewal and, upon renewal, vacated an order of the same court, entered July 16, 1982, and denied plaintiff’s motion for summary judgment (99 AD2d 527). 11 Motion for reargument granted. 11 Plaintiff contends that he is entitled to partial summary judgment for $7,500, with interest and costs. His action consists of three causes of action to recover on promissory notes and a dishonored check. Defendants have conceded that there remains a balance due of $7,500 on the only note which they claim remains unpaid. As there is no question of fact with respect to this note, which is the basis of plaintiff’s second cause of action, plaintiff is entitled to partial summary judgment on that cause of action. Accordingly, the decision and order of this court in the above-entitled action, both dated January 23, 1984, are recalled and vacated, and the following decision is substituted therefor: H In an action to recover on promissory notes and upon a dishonored check, defendants appeal from an order of the Supreme Court, Westchester County (Ferraro, J.), entered October 4, 1982, which denied their motion for renewal of a prior order of the same court, entered July 16, 1982, which granted plaintiff’s motion for summary judgment. II Order reversed, without costs or disbursements, motion for renewal granted and, upon renewal, order entered July 16,1982 modified, by granting plaintiff’s motion for summary judgment as to the second cause of action only, and motion otherwise denied. The matter is remitted to Special Term for entry of a judgment on the second cause of action for $7,500 plus interest at the statutory rate (see CPLR 5004) from May 31, 1981 and the Sheriff of Suffolk County is directed to surrender to the plaintiff the amount of that judgment and to return to the defendant Robert Pachinger $29,237.57 less that amount. 11 Defendants have established that their motion, denominated as one to reargue, was misdesignated and that Special Term should have treated it as one to renew based upon newly discovered evidence (see Estrow v Wilson, 30 AD2d 646; Matter of Onondaga County Dist. Attorney’s Off., 92 AD2d 32, 35; cf. Roberts v Connelly, 35 AD2d 813). 11 Defendants’ newly discovered evidence, a check which they allege indicated repayment of one of the promissory notes sued upon, established a genuine triable issue of fact which mandates the denial of summary judgment with respect to the first and third causes of action arising from that promissory note and a dishonored check (see Barrett v Jacobs, 255 NY 520; Di Sabato v Soffes, 9 AD2d 297, 300; Horvath v 305 Park Club Lane, 37 AD2d 907). H Plaintiff claims, however, and defendants do not controvert, that there is no triable issue of fact with respect to the second cause of action for $7,500, based on one of the promissory notes. Therefore, the order dated July 16,1982 is modified by granting partial summary judgment only as to the undisputed cause of action. Titone, J. P., Gibbons, Thompson and Boyers, JJ., concur.