        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

398
CA 16-00840
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.


JOSEPH M. BRAINARD, INDIVIDUALLY AND ON BEHALF
OF BRAICO ENTERPRISES, LLC, PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

CINDY BARDEN, JOHN BARDEN, DOUBLE DOWN TRANSPORT
NY, INC., DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


ANTHONY J. CERVI, BUFFALO, FOR PLAINTIFF-APPELLANT.

WOODS OVIATT GILMAN LLP, BUFFALO (WILLIAM F. SAVINO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (Timothy J. Walker, A.J.), entered March 7, 2016.
The order and judgment, inter alia, granted the motion of defendants
John Barden, Cindy Barden and Double Down Transport NY, Inc., for
partial summary judgment on the third counterclaim in their amended
answer.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiff, Joseph M. Brainard (Brainard),
individually and on behalf of Braico Enterprises, LLC (Braico),
commenced this action seeking damages arising from an asset purchase
transaction. Brainard and/or Braico entered into an asset purchase
agreement with defendant Cindy Barden, the sole shareholder of
defendant Double Down Transport NY, Inc. (DDTNY), to purchase the
assets of DDTNY. Supreme Court granted the second motion of John
Barden, Cindy Barden and DDTNY (defendants) seeking partial summary
judgment on the third counterclaim contained in their amended answer.
We affirm.

     The third counterclaim asserted a claim for conversion and sought
payment of $56,292.82 based upon plaintiff’s alleged failure to
reimburse DDTNY for Braico’s use of DDTNY’s fuel debit cards, in
accordance with an oral agreement between Brainard and John Barden.
In his reply to the counterclaims, plaintiff admitted the allegations
contained in the third counterclaim for conversion.

     Contrary to plaintiff’s contention, the court properly exercised
its discretion to entertain defendants’ second motion for partial
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                                                         CA 16-00840

summary judgment, where, as here, “it is substantively valid and
[when] the granting of the motion will further the ends of justice
while eliminating an unnecessary burden on the resources of the
courts” (Town of Angelica v Smith, 89 AD3d 1547, 1549 [internal
quotation marks omitted]). The admissions in plaintiff’s reply to the
allegations in the third counterclaim “constitute formal judicial
admissions” and are conclusive with respect to the facts admitted
(Kimso Apts., LLC v Gandhi, 24 NY3d 403, 412). Thus, contrary to
plaintiff’s further contention, we conclude that defendants
established their entitlement to judgment on their third counterclaim,
and that plaintiff failed to raise an issue of fact (see generally
Zuckerman v City of New York, 49 NY2d 557, 562).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
