Opinion
March 20, 1995
Appeal from the Supreme Court, Nassau County (O'Shaughnessy, J.).
Ordered that the appeal from the order is dismissed, and it is further,
Ordered that the judgment is affirmed, and it is further,
Ordered that the respondent is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The defendant Cecilia Chang has failed to demonstrate any triable issue of fact on the issue of liability. The plaintiff established that there was a valid leasing agreement between the plaintiff as lessor and the defendants, L.I. Seafood Dumpling House and George Liu as lessees, and that Chang executed a guaranty whereby she guaranteed payment of the lessees' obligation under the lease. Upon the lessees' default the plaintiff was within its contractual rights to repossess the leased vehicle and thereafter sell it. In addition, contrary to Chang's contention, the payments she made to the plaintiff after the vehicle had been repossessed did not fully cure the lessees' default. In any event, nothing in the lease or the guaranty obligated the plaintiff to return the repossessed vehicle to Chang, and the plaintiff was entitled to sell the vehicle to a third party after the repossession.
The Supreme Court correctly determined that the liquidated damages clause of the lease is unenforceable since the amount of actual damages can be readily ascertained and the liquidated damages would amount to a penalty (see, Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 N.Y.2d 420).
We find that Chang's remaining contentions are without merit. Copertino, J.P., Pizzuto, Joy and Friedmann, JJ., concur.