Stern v Payne

[*1] Stern v Payne 2012 NY Slip Op 50680(U) Decided on April 10, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 10, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
.

Barry Stern, Appellant,

against

Hector Payne and GERALDINE PAYNE, Respondents.

Appeal, on the ground of inadequacy, from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 8, 2010, and from a judgment of the same court entered December 21, 2010. The order granted plaintiff's motion to enter a default judgment only to the extent of awarding plaintiff judgment in the principal sum of $10,257. The judgment, entered pursuant to the December 8, 2010 order, awarded plaintiff the principal sum of $10,257.

ORDERED that the appeal from the order is dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]); and it is further,ORDERED that the judgment is modified by increasing the amount awarded to plaintiff to the principal sum of $14,399, the order entered December 8, 2010 is vacated, and plaintiff's motion to enter a default judgment is granted to the extent of awarding plaintiff the principal sum of $14,399; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this action against the guarantors of a promissory note. After a default by defendants, plaintiff moved to enter a default judgment, seeking an award in the principal sum of $14,399. By order entered December 8, 2010, the Civil Court granted plaintiff's motion to the extent of awarding plaintiff the principal sum of $10,257. A judgment was entered on December 21, 2010 pursuant to the December 8, 2010 order.

On appeal, plaintiff contends that the amount awarded should be increased to the principal sum of $14,399 based upon the terms and conditions of the note and guaranty. Upon a review of the record, we agree. Accordingly, the amount awarded plaintiff is increased to the principal sum of $14,399. Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 10, 2012