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Pensabene v. Lee

Appellate Division of the Supreme Court of New York, Second Department
Dec 12, 1994
210 A.D.2d 305 (N.Y. App. Div. 1994)

Opinion

December 12, 1994

Appeal from the Supreme Court, Westchester County (Nastasi, J.).


Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgments are 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 appeal from the order are brought up for review and have been considered on the appeal from the judgment entered upon the order (CPLR 5501 [a] [1]).

The plaintiff and the defendant entered into a separation agreement in which their rights and obligations concerning the former marital home were set forth. The separation agreement provided, "Both parties shall cooperate and use efforts reasonably calculated to produce the best sales price then available in the market for the marital premises and shall agree in a prior writing upon a gross offering price and minimum net selling price." Despite numerous requests by the plaintiff, the defendant failed to set a price for the marital home or to accept any bids offered by interested buyers. The plaintiff brought this action to compel the defendant to comply with the aforementioned provision of the separation agreement.

Since the defendant failed to establish the existence of a factual issue requiring a trial of the action, the Supreme Court properly granted summary judgment to the plaintiff (see, Zuckerman v City of New York, 49 N.Y.2d 557). Moreover, the Supreme Court's sua sponte dismissal of the defendant's counterclaims was also proper (see, CPLR 3212 [b]; Grimaldi v Pagan, 135 A.D.2d 496). In this case, the counterclaims were so intertwined with the relief sought by the plaintiff that, in granting the plaintiff summary judgment, the court necessarily had to reject defendant's counterclaims.

The separation agreement provided that, in case of a default, the defaulting party would be obligated to pay the other party's counsel fees. Therefore, the Supreme Court correctly awarded counsel fees to the plaintiff.

The defendant's remaining contention is without merit. Bracken, J.P., Miller, Ritter and Goldstein, JJ., concur.


Summaries of

Pensabene v. Lee

Appellate Division of the Supreme Court of New York, Second Department
Dec 12, 1994
210 A.D.2d 305 (N.Y. App. Div. 1994)
Case details for

Pensabene v. Lee

Case Details

Full title:PIETRINA N. PENSABENE, Respondent, v. MICHAEL B. LEE, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 12, 1994

Citations

210 A.D.2d 305 (N.Y. App. Div. 1994)
620 N.Y.S.2d 285

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