From Casetext: Smarter Legal Research

Naugatuck Savings Bank v. Gross

Appellate Division of the Supreme Court of New York, Second Department
Apr 3, 1995
214 A.D.2d 549 (N.Y. App. Div. 1995)

Opinion

April 3, 1995

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


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

Ordered that the judgment is modified, by deleting the provision thereof which awarded the plaintiff attorney's fees in the sum of $6,000, and substituting therefor a provision awarding the plaintiff attorney's fees in the sum of $4,100; as so modified, the judgment is affirmed; and it is further,

Ordered that the plaintiff 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 (see, CPLR 5501 [a] [1]).

The plaintiff sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by submitting proof of the existence of the mortgage note, the defendant's individual guarantee of the note, and the defendant's default in payment after due demand (see, Gemilas Chesed Kehilath Jakov Papa v Oberlander, 212 A.D.2d 574; Zitel Corp. v Fonar Corp., 210 A.D.2d 221; Beube v English, 206 A.D.2d 339). It was thus incumbent upon the defendant to demonstrate, by admissible evidence, the existence of a genuine triable issue of fact with respect to a bona fide defense (see, Gemilas Chesed Kehilath Jakov Papa v Oberlander, supra; Zitel Corp. v Fonar Corp., supra). Here, the defendant's conclusory assertions that the plaintiff bank acted in bad faith by failing to provide appropriate funding for the condominium project, and by failing to approve prospective condominium purchasers, were wholly unsubstantiated by evidentiary proof, and were thus insufficient to defeat the plaintiff's motion for summary judgment.

However, we agree with the defendant's contention that the Supreme Court should not have awarded the plaintiff attorney's fees for anticipated future services which may be performed in enforcing the judgment (see, National Union Fire Ins. Co. v Hartel, 782 F. Supp. 22, affd 972 F.2d 1328; First Deposit Natl. Bank v Moreno, 159 Misc.2d 920; Avco Fin. Servs. Trust v Bentley, 116 Misc.2d 34). Accordingly, we modify the attorney's fee award to eliminate compensation for prospective services. Sullivan, J.P., Copertino, Pizzuto and Krausman, JJ., concur.


Summaries of

Naugatuck Savings Bank v. Gross

Appellate Division of the Supreme Court of New York, Second Department
Apr 3, 1995
214 A.D.2d 549 (N.Y. App. Div. 1995)
Case details for

Naugatuck Savings Bank v. Gross

Case Details

Full title:NAUGATUCK SAVINGS BANK, Respondent, v. KENNETH GROSS, Appellant

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

Date published: Apr 3, 1995

Citations

214 A.D.2d 549 (N.Y. App. Div. 1995)
625 N.Y.S.2d 572

Citing Cases

Wolf v. Citibank

The defendant established its prima facie entitlement to judgment as a matter of law by submitting proof of…

Wells Fargo Bank, N.A. v. Sopko

its terms"]; Emigrant Mtge. Co, Inc. v Fitzpatrick, 95 AD3d 1169, 945 NYS2d 697 [2d Dept 2012] [claimed…