Opinion
CA 02-02429
July 3, 2003.
Appeal from that part of an order of Supreme Court, Erie County (Mahoney, J.), entered October 1, 2002, that, upon reargument, adhered to the court's previous order denying defendant's motion for summary judgment dismissing the complaint and for attorneys' fees.
GRESENS GILLEN LLP, BUFFALO (JAMES W. GRESENS OF COUNSEL), AND LAWRENCE A. SCHULZ, ORCHARD PARK, FOR DEFENDANT-APPELLANT.
SULLIVAN OLIVERIO GIOIA LLP, BUFFALO (RICHARD T. SULLIVAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
In this action seeking damages for breach of contract, defendant appeals from two orders of Supreme Court. The first denied her motion for summary judgment dismissing the complaint and for attorneys' fees, and the second we construe as granting reargument only and, upon reargument, adhering to the court's previous order. The appeal from the first order must be dismissed because that order was superseded by the order granting reargument ( see Loafin' Tree Rest. v. Pardi [appeal No. 1], 162 A.D.2d 985). The court properly denied that part of defendant's motion for summary judgment dismissing the complaint. Assuming, arguendo, that defendant sustained her burden of demonstrating her entitlement to judgment as a matter of law, we conclude that plaintiff raised triable issues of fact concerning whether defendant breached her obligations under the parties' separation agreement ( see Mohiuddin v. Stringer Constr., 302 A.D.2d 960; Dec v. Auburn Enlarged School Dist., 249 A.D.2d 907, 909; Tri-Delta Aggregates v. Chautauqua County, 237 A.D.2d 880, 881; Velardi v. Lerman, 203 A.D.2d 929).