Opinion
2014-02-13
Deepak H. PATEL, respondent, v. NJDV HOSPITALITY, INC., et al., defendants, Mahesh Jani, appellant.
Condon & Associates, PLLC, Nanuet, N.Y. (Brian K. Condon and Laura M. Catina of counsel), for appellant. Michael H. Joseph PLLC, White Plains, N.Y. (Clifford S. Nelson of counsel), for respondent.
Condon & Associates, PLLC, Nanuet, N.Y. (Brian K. Condon and Laura M. Catina of counsel), for appellant. Michael H. Joseph PLLC, White Plains, N.Y. (Clifford S. Nelson of counsel), for respondent.
In an action to recover on a promissory note, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant Mahesh Jani appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Rockland County (Berliner, J.), dated April 2, 2012, as granted that branch of the motion which was for summary judgment in lieu of complaint insofar as asserted against him, and (2) so much of a judgment of the same court dated May 11, 2012, as, upon the order, is in favor of the plaintiff and against him in the total sum of $651,656.44.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the 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, 383 N.Y.S.2d 285, 347 N.E.2d 647). 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 plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating the existence of a promissory note executed by, among others, the defendant Mahesh Jani, the unconditional terms of repayment, and Jani's default thereunder ( see Cooper Capital Group, Ltd. v. Densen, 104 A.D.3d 898, 960 N.Y.S.2d 917; Sound Shore Med. Ctr. of Westchester v. Maloney, 96 A.D.3d 823, 947 N.Y.S.2d 317; Jin Sheng He v. Sing Huei Chang, 83 A.D.3d 788, 921 N.Y.S.2d 128). In opposition to the plaintiff's prima facie showing, Jani failed to raise a triable issue of fact ( see Jin Sheng He v. Sing Huei Chang, 83 A.D.3d at 789, 921 N.Y.S.2d 128; Haselnuss v. Delta Testing Labs., 249 A.D.2d 509, 671 N.Y.S.2d 361).
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment in lieu of complaint pursuant to CPLR 3213 insofar as asserted against Jani. DILLON, J.P., LEVENTHAL, HALL and COHEN, JJ., concur.