
    Marna Construction Corp., Respondent, v. Town of Huntington, Appellant. (And Another Action.)
    Submitted September 18, 1972;
    decided December 6, 1972.
    
      
      Nicholas LaCarrubba, Town Attorney (Harold Mortensen and Jerome P. Wallin of counsel), for motion.
    
      George F. Mackey opposed.
   Motion dismissed on the ground the order of the Appellate Division affirming a judgment of the Supreme Court, Suffolk County, is not final. The judgment, describing itself as an “ interlocutory judgment ”, determined that plaintiff was entitled to recover a specified sum from the town under a construction contract, subject to a further determination of an affirmative defense of the town which, if sustained, could have reduced the amount of the judgment. It also dismissed the town’s connterclaim based on performance of the work. Since the cause of action asserted by plaintiff was for the recovery of money and the judgment left open the amount of recovery, it was not final. The counterclaim was dependently related to the main controversy between plaintiff and the town as to whether the contract had been performed or breached. Thus the main cause of action which was left open for further adjudication was inextricably related to the counterclaim. Since the amount due in resolution of the entire controversy was left open, undetermined by the judgment which was the subject of appeal to the Appellate Division, the resulting decision in that court which reviewed only that judgment and did not pass on a later final judgment on the issues left open must be deemed nonfinal (Behren v. Papworth, 30 N Y 2d 532; cf. Sirlin Plumbing Co. v. Maple Hill Homes, 20 N Y 2d 403.).  