Federal Deposit Insurance Corporation v. Robert L. Kassel

In an action to recover accrued installments on a lease of certain telephone equipment, defendant appeals from an order of the Supreme Court, Kings County, dated August 8, 1978, which (1) granted plaintiffs motion for summary judgment, (2) struck defendants answer and counterclaim, (3) denied defendants motion to add necessary parties, and (4) awarded attorneys fees to the plaintiff. On the courts own motion, the notice of appeal is deemed to be a premature notice of appeal from a judgment of the same court, entered upon the order on September 6, 1978 (see CPLR 5520, subd [c]). Appeal from the order dismissed (see Matter of Aho, 39 N.Y.2d 241, 249). Judgment modified by deleting therefrom the provision awarding plaintiff attorneys fees "at the rate of 20% of the principal and interest". As so modified, judgment affirmed, with one bill of $50 costs and disbursements to plaintiff, and action remitted to Special Term for a hearing on the issue of the reasonableness of the attorneys fees and for the entry of an appropriate amended judgment in accordance herewith. At the outset, we note that the affidavit of plaintiffs attorney on the motion for summary judgment, which affidavit was based on documentary evidence in his possession, was sufficient (see Getlan v Hofstra Univ., 41 A.D.2d 830, app dsmd 33 N.Y.2d 646). Plaintiffs cause of action is to recover accrued installments on a lease of certain telephone equipment, leased to the defendant by the assignor of plaintiffs predecessor in interest. The lease agreement contained a clause that in the event the lease was assigned, the lessee (defendant) would not assert as against the assignee any defenses or claims which he might have as against the lessor. As a defense to this action, defendant claims that he was fraudulently induced to enter into the lease arrangement. Plaintiff, as successor in interest to the assignee of the lease, argues that this defense may not be asserted by reason of the aforesaid clause in the agreement. Subdivision (1) of section 9-206 of the Uniform Commercial Code states that an agreement not to assert any claims or defenses against an assignee of a lease of consumer goods is enforceable by the assignee, so long as the assignee took for value, in good [72 A.D.2d 787 Page 788]