Noho Light. & Elec. Supply Co., Inc. v Simon

Noho Light. & Elec. Supply Co., Inc. v Simon 2007 NY Slip Op 08862 [45 AD3d 391] November 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Noho Lighting & Electrical Supply Co., Inc., Appellant,
v
Ezra Simon, Respondent.

—[*1] Howard M. File, P.C., Staten Island (Avery J. Gross of counsel), for appellant.

Kornfeld & Associates, P.C., New York City (Randy M. Kornfeld of counsel), for respondent.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered December 18, 2006, after a nonjury trial, reforming a $1,000,000 promissory note to $298,999, crediting defendant $201,403.12 against the $228,375.42 found to be due under the reformed note, and awarding plaintiff $34,137.65 inclusive of interest, unanimously reversed, on the law, with costs, defendant directed to serve an answer within 30 days of service of a copy of this order with notice of entry, and the matter remanded for further proceedings.

The court initially denied the parties' motions for summary judgment, finding triable issues of fact. When the parties again moved for summary judgment upon completion of disclosure, the same issues of fact existed, including the meaning of the subject contract and whether plaintiff committed fraud. Accordingly, the court should not have determined, prior to trial, that the contract did not reflect the parties' intent and needed to be reformed, and instead should have directed a trial on all issues (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We note that defendant never served a formal answer. This left plaintiff guessing as to what defendant was alleging (see CPLR 3016 [b]; 3018 [b]) and demanding as relief (see CPLR 3019). Accordingly, we direct service of a formal answer. Concur—Friedman, J.P., Sullivan, Buckley and Malone, JJ.