TARS ULUSLARARASI DIS TICARET TURIZM VE SANAYI LIMITED v. LEONARD

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

TARS ULUSLARARASI DIS TICARET TURIZM VE SANAYI LIMITED, Sirketi, Plaintiff-Respondent, v. Gerald LEONARD, Defendant-Appellant.

Decided: February 28, 2006

TOM, J.P., MAZZARELLI, SULLIVAN, SWEENY, MALONE, JJ. Kucker & Bruh, LLP, New York (William D. Hummell of counsel), for appellant. Lance S. Grossman, New York, for respondent.

Order and judgment (one paper), Supreme Court, New York County (Louis B. York, J.), entered July 5, 2005, granting plaintiff summary judgment in lieu of complaint, denying defendant's cross motion to dismiss the complaint, and awarding recovery in the principal amount of $69,875 plus statutory interest, unanimously modified, on the law and the facts, the matter remanded for recalculation of pre- and post-judgment interest as well as attorneys' fees, and otherwise affirmed, without costs.

 Plaintiff presented a prima facie showing of entitlement to summary judgment in lieu of complaint (CPLR 3213), and defendant has not demonstrated any triable issues of fact to warrant denial of summary relief (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).   Defendant failed to meet his burden of demonstrating plaintiff was conducting business in New York so as to deprive it of the right to maintain this action (Airline Exch. v. Bag, 266 A.D.2d 414, 698 N.Y.S.2d 694 [1999];  see Business Corporation Law § 1312).   There was no showing that payment by a third party of his own debt in connection with a settlement of a prior action constituted an accord and satisfaction of defendant's separate debt entered into in connection with that settlement.

Because the second interest-only payment under the note accrued within the six-year statute of limitations period (CPLR 213), the court properly awarded such payment.   It is apparent that the court's use of the 1996 date was a typographical error and that all calculations were to be made from the December 31, 1998 date.   However, because even plaintiff concedes that the calculation of pre-judgment interest is incorrect, the judgment should be remanded for recalculation of such interest on the debt from December 31, 1998 through the date of the decision, June 15, 2005, plus interest on the total award from that date to the date of entry of the judgment, July 5, 2005, and the addition of legal fees pursuant to the terms of the note.