Opinion
2012-03-16
DEERE & COMPANY, Plaintiff–Respondent, v. M.P. JONES COMPANIES, INC., Melissa A. Hornung and Richard R. Jones, Defendants–Appellants. (Appeal No. 1.)
Gilles R.R. Abitbol, Liverpool, for Defendants–Appellants. Costello, Cooney & Fearon, PLLC, Camillus (Jennifer E. Mathews of Counsel), for Plaintiff–Respondent.
Gilles R.R. Abitbol, Liverpool, for Defendants–Appellants. Costello, Cooney & Fearon, PLLC, Camillus (Jennifer E. Mathews of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
In these consolidated appeals arising from a breach of contract action, in appeal No. 1 defendants appeal from an order that, inter alia, struck their answers and counterclaims, granted plaintiff's motion for summary judgment, and awarded plaintiff a money judgment. In appeal No. 2, defendants appeal from an order awarding plaintiff a “judgment” of attorney's fees and costs incurred in obtaining the order in appeal No. 1. Contrary to the contention of defendants in appeal No. 1, Supreme Court properly declined to take judicial notice of their signatures in their verified pleadings to find a triable issue of fact sufficient to defeat plaintiff's motion for summary judgment. Plaintiff met its initial burden on the motion by submitting the contract and evidence establishing that defendants failed to make the payments required by its terms ( see Convenient Med. Care v. Medical Bus. Assoc., 291 A.D.2d 617, 618, 737 N.Y.S.2d 403). The court struck defendants' answers based upon their collective repeated failures to comply with the court's discovery orders. Thus, whether the contents of the answers might otherwise have raised an issue of fact to defeat the motion is not relevant.
We have considered defendants' remaining contentions with respect to both appeals, and we conclude that they are without merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.