Opinion
2001-04909, 2001-04910
Argued October 29, 2001.
January 22, 2002.
In an action to recover on a promissory note brought by motion for summary judgment in lieu of a complaint pursuant to CPLR 3213, the defendants appeal from (1) an order of the Supreme Court, Kings County (Steinhardt, J.), dated March 15, 2001, which granted the motion, and (2) a judgment of the same court, entered April 25, 2001, which is in favor of the plaintiff and against them in the principal sum of $96,740.36.
Richard G. Monaco, Bronx, N.Y., for appellants.
Peter J. Noto, Brooklyn, N.Y. (Joseph E. Caiazzo of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., CORNELIUS J. O'BRIEN, GLORIA GOLDSTEIN, HOWARD MILLER, JJ.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, the order dated March 15, 2001, is vacated, the motion is denied, the action is reinstated, and the moving and answering papers are deemed to be the complaint and the answer, respectively; and it is further,
ORDERED that the defendants are 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 (see, CPLR 5501[a][1]).
The defendants raised a triable issue of fact as to whether failure of consideration constitutes a valid defense to the promissory note (see, Tibball v. Catalanotto, 269 A.D.2d 386; Goodman, Rakower Agiato v. Lieberman, 226 A.D.2d 343; Eurotech Dev. v. Adirondack Pennysaver, 224 A.D.2d 738, 739). Accordingly, the motion for summary judgment in lieu of a complaint should have been denied (cf., MDJR Enters. v. LaTorre, 268 A.D.2d 509).
ALTMAN, J.P., O'BRIEN, GOLDSTEIN and H. MILLER, JJ., concur.