Moeller v. Remodeling Consultants, Inc. , 149 A.D.2d 487 ( 1989 )

— In an action to recover damages, inter alia, for breach of contract, (1) the plaintiffs Hans and Inge Moeller and the additional counterclaim defendant Robert Sharon appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered November 13, 1987, as granted the defendant leave to enter a default judgment on its counterclaims, and (2) the additional counterclaim defendant Sharon appeals from so much of that order as denied his cross motion to dismiss the fourth and fifth counterclaims against him on the ground that they failed to state a cause of action.

Ordered that the appeal from so much of the order as granted the defendant leave to enter a default judgment on its counterclaims is dismissed as academic; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the defendant is awarded one bill of costs.

The appeal relating to that part of the order which granted the defendant leave to enter a default judgment on its counterclaims is dismissed as academic since the default in replying to the counterclaims was vacated by a subsequent order of the Supreme Court, Westchester County (Nastasi, J.), entered October 26, 1988.

We find that the fourth and fifth counterclaims against the additional counterclaim defendant, as escrowee, stated causes of action and therefore the Supreme Court properly denied his cross motion to dismiss pursuant to CPLR 3211 (a) (7) (see, Guggenheimer v Ginzburg, 43 NY2d 268, 274). Thompson, J. P., Bracken, Brown and Rubin, JJ., concur.