SHEPIS v. COTTAGE PLACE ASSOCIATES

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

Nicholas R. SHEPIS, etc., Appellant-Respondent, v. 3 COTTAGE PLACE ASSOCIATES, et al., Respondents-Appellants.

Decided: June 24, 2002

SANDRA J. FEUERSTEIN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY and STEPHEN G. CRANE, JJ. Servino, Santangelo & Randazzo, LLP, White Plains, N.Y. (Anthony J. Servino of counsel), for appellant-respondent. Finger & Finger, P.C., White Plains, N.Y. (Kenneth J. Finger of counsel), for respondent-appellant 3 Cottage Place Associates, and Eiseman Levine Lehrhaupt & Kakoyiannis, P.C., New York, N.Y. (Eric R. Levine and Peter Reiser of counsel), for respondent-appellant Barclays Bank of New York (one brief filed).

In an action, inter alia, to recover money owed under three promissory notes, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), entered April 6, 2001, as granted that branch of the defendants' motion which was to dismiss the complaint, and the defendants cross-appeal from so much of the same order as denied that branch of their motion which was for the imposition of sanctions against the plaintiff and the plaintiff's counsel.

ORDERED that the order is modified, on the law, by deleting the provision thereof which granted that branch of the defendants' motion which was to dismiss the third and sixth causes of action and substituting therefor a provision denying that branch of the defendants' motion;  as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the action against 3 Cottage Place Associates is severed.

The notes in the sums of $287,500 and $65,000, which were the subjects of the second, fourth, and fifth (incorrectly denominated as the fourth) causes of action in the plaintiff's verified complaint, represent the same indebtedness that Cynthia Shepis previously sued to collect and ultimately settled for $100,000.   Consequently, the plaintiff may not collect on the same indebtedness again.

The $7,500 balance of the indebtedness on the $15,000 note was never the subject of Cynthia Shepis's earlier action.   Therefore, the third cause of action alleging money owed on the outstanding balance on that note and that part of the sixth cause of action that seeks all costs, expenses of collection, and reasonable attorneys' fees relating to the balance due on the $15,000 note are reinstated.   The action remains dismissed as to the defendant Barclays Bank of New York, and the complaint is severed accordingly.

There is no merit to the plaintiff's further arguments or to the defendants' arguments in support of their cross appeal.

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