Ten Best Bar Rest Group, Inc. v. Roche

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered July 12, 1999, in favor of plaintiff and against defendants in the principal amount of $95,000, and bringing up for review an order, also entered on or about July 12, 1999, which, insofar as challenged, partially granted plaintiff’s motion for summary judgment on its main claim and for summary judgment dismissing defendants’ counterclaim, and denied defendants’ cross motion for a default judgment on their counterclaim, unanimously affirmed, with costs.

*28The court properly granted plaintiffs motion for summary judgment to the extent of directing defendants to return the $95,000 that plaintiff paid them in contemplation of the transfer of their business to plaintiff, which transfer never took place. Defendants’ counterclaim was properly dismissed in view of the prior action pending in Suffolk County for the same relief, and the showing that plaintiff makes of a reasonable excuse for its default and a meritorious defense. Concur — Mazzarelli, J. P., Wallach, Andrias, Saxe and Buckley, JJ.