From Casetext: Smarter Legal Research

Cherlin v. Epstein

Appellate Division of the Supreme Court of New York, First Department
May 27, 1999
261 A.D.2d 345 (N.Y. App. Div. 1999)

Opinion

May 27, 1999

Appeal from the Supreme Court, New York County (Sheila Abdus-Salaam, J.).


Summary judgment on the note in issue is precluded by issues of fact. Plaintiff concedes his warranty "that the current outstanding operating expenses of both [corporations] do not exceed $50,000" is intertwined with defendant's obligation to pay the note. There are factual issues as to whether such amount was intended to include operating expenses that were already outstanding at the time the note was made (see, Van Wagner Adv. Corp. v. S M Enters., 67 N.Y.2d 186, 191), and, if so, whether such pre-note operating expenses exceeded $50,000. We reject plaintiff's claim that the schedule of pre-note outstanding expenses to which defendant attested in opposition to the motion is not evidence in admissible form, but do not foreclose a motion court from later requiring defendant, prior to trial, to produce documentation of his claim such as bills and canceled checks. Concerning defendant's counterclaim for fraud, issues of fact exist as to, inter alia, the extent of defendant's knowledge of the corporations' day-to-day financial affairs prior to his buying out of plaintiff's interest therein, and the extent to which plaintiff failed to disclose the corporations' true financial conditions.

Concur — Sullivan, J. P., Tom, Wallach, Lerner and Andrias, JJ.


Summaries of

Cherlin v. Epstein

Appellate Division of the Supreme Court of New York, First Department
May 27, 1999
261 A.D.2d 345 (N.Y. App. Div. 1999)
Case details for

Cherlin v. Epstein

Case Details

Full title:MARTIN CHERLIN, Appellant, v. NORMAN M. EPSTEIN, Respondent

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

Date published: May 27, 1999

Citations

261 A.D.2d 345 (N.Y. App. Div. 1999)
690 N.Y.S.2d 432

Citing Cases

Renaissance Corp. v. E. Vil. Pet Grooming Salon

Within 20 days after service of this order with notice of entry, plaintiff shall serve and file a complaint…

Borremans v. Gardner

Accordingly, to establish that Gardner and Saleh defaulted in their obligations to pay under the Guaranty…