180 A.D.2d 723 | N.Y. App. Div. | 1992
In an action to recover damages for breach of contract, the defendants appeal from (1) an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated February 5, 1990, which granted the plaintiff-respondent’s motion for summary judgment, and (2) a judgment of the same court, entered July 25, 1990, which is in favor of the plaintiff-respondent Richard J. Ranieri and against Michael Leavy and Majestic Marine in the principal sum of $26,733. The appellants’ notice of appeal from an order of the same court dated June 13, 1990, which, upon reargument and renewal, adhered to the original determination made in the order dated February 5, 1990, is treated as a premature notice of appeal from the judgment (CPLR 5520 [c]).
Ordered that the appeal from the order dated February 5,
Ordered that the judgment is modified, on the law, by (1) deleting therefrom the words "Michael Leavy and Majestic Marine” and substituting therefor the words "Majestic Marine, Inc.”, and (2) adding thereto a provision in favor of the defendant Michael Leavy dismissing the complaint insofar as it is asserted against him; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate amended judgment; and it is further,
Ordered that the order dated February 5, 1990, is modified accordingly.
The appeal from the intermediate order dated February 5, 1990, 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). The issues raised on appeal from the order dated February 5, 1990, and the subsequent order dated June 13, 1990, are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Richard J. Ranieri and Abe Silva contracted to purchase a boat from a business entity known as Majestic Marine for $42,500. The agreement, a preprinted form showing the company name "majestic marine” at the head of the front page, provided that it was "subject to finance and approval” and was "[n]ot valid unless signed and accepted by an officer of the company”. The contract was signed by the plaintiffs and a salesperson. Ranieri paid $50 cash on signing and subsequently made an additional payment of $20,000 by check payable to Majestic Marine. Two unsuccessful applications for financing were made on behalf of Silva, and, after learning that the defendants Michael Leavy and Alan Liebowitz were the purported owners of majestic marine, Ranieri and his attorney demanded that Leavy return the payments made by Ranieri. In or about July 1989 Leavy informed Ranieri that he would not return these payments. The plaintiffs commenced the instant action, and, after issue was joined, moved for summary judgment. The appellants, in opposition, asserted that "the only dealings those plaintiffs have had were with Majestic Marine, Inc.” The Supreme Court granted the plaintiffs’ motion, holding the defendant Leavy personally liable pursuant to Partnership Law § 27.
We conclude that the Supreme Court erred in determining
However, the judgment is also against Majestic Marine. In the answer, the defendant Majestic Marine appeared as "majestic marine, inc., sued herein as majestic marine”, and therefore acknowledged that the Supreme Court had personal jurisdiction over the corporation. The plaintiffs proved that the contract became void, inter alia, upon the failure to obtain financing. We therefore conclude that the plaintiff Richard J. Ranieri is entitled to recover against Majestic Marine, Inc. The judgment and the order dated February 5, 1990, have been modified accordingly. Bracken, J. P., Harwood, Balletta and Copertino, JJ., concur.