SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
270
CA 11-00572
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.
DEERE & COMPANY, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
M.P. JONES COMPANIES, INC., MELISSA A. HORNUNG
AND RICHARD R. JONES, DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)
GILLES R.R. ABITBOL, LIVERPOOL, FOR DEFENDANTS-APPELLANTS.
COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (JENNIFER E. MATHEWS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered November 22, 2010 in a breach of
contract action. The order, among other things, granted plaintiff’s
motion for summary judgment and awarded plaintiff a money judgment.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed with costs.
Memorandum: In these consolidated appeals arising from a breach
of contract action, in appeal No. 1 defendants appeal from an order
that, inter alia, struck their answers and counterclaims, granted
plaintiff’s motion for summary judgment, and awarded plaintiff a money
judgment. In appeal No. 2, defendants appeal from an order awarding
plaintiff a “judgment” of attorney’s fees and costs incurred in
obtaining the order in appeal No. 1. Contrary to the contention of
defendants in appeal No. 1, Supreme Court properly declined to take
judicial notice of their signatures in their verified pleadings to
find a triable issue of fact sufficient to defeat plaintiff’s motion
for summary judgment. Plaintiff met its initial burden on the motion
by submitting the contract and evidence establishing that defendants
failed to make the payments required by its terms (see Convenient Med.
Care v Medical Bus. Assoc., 291 AD2d 617, 618). The court struck
defendants’ answers based upon their collective repeated failures to
comply with the court’s discovery orders. Thus, whether the contents
of the answers might otherwise have raised an issue of fact to defeat
the motion is not relevant.
We have considered defendants’ remaining contentions with respect
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CA 11-00572
to both appeals, and we conclude that they are without merit.
Entered: March 16, 2012 Frances E. Cafarell
Clerk of the Court