WHITE ROSE FOOD v. Frank Mazzilli, Appellant. (1999)

In an action, inter alia, to recover money under a guarantee, the defendant Frank Mazzilli appeals from (1) an order of the Supreme Court, Suffolk County (Cannavo, J.), entered November 14, 1997, which granted the plaintiffs' motion for summary judgment, and (2) a judgment of the same court, entered March 5, 1998, upon the order, which is in favor of the plaintiffs and against him in the principal sum of $40,060.63.

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

ORDERED that the judgment is modified, on the facts, by deleting the provision thereof which is in favor of the plaintiffs and against the defendant Frank Mazzilli in the principal sum of $40,060.63, and substituting therefor a provision in favor of the plaintiffs and against the defendant Frank Mazzilli in the principal sum of $38,616.00;  as so modified, the judgment is affirmed;  and it is further,

ORDERED that the respondents are 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, 383 N.Y.S.2d 285, 347 N.E.2d 647).   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 defendant Frank Mazzilli executed an unconditional written guarantee of payment of all sums owed to the plaintiffs by Apple Orchard Farms Corp. His contention that his obligation pursuant to the guarantee was discharged by operation of law involves numerous factual issues and is improperly raised for the first time on appeal (see, Matter of Matarrese v. New York City Health & Hosps. Corp., 247 A.D.2d 475, 668 N.Y.S.2d 686;  Gross v. Aetna Cas. & Sur. Co., 240 A.D.2d 468, 658 N.Y.S.2d 137).

Mazzilli does correctly contend, however, that the Supreme Court failed to reduce the amount due by the sum of $1,444.63, which the plaintiffs concede they received from another guarantor.

Mazzilli's remaining contentions regarding the issue of damages are without merit.

MEMORANDUM BY THE COURT.