National Equipment Rental, Ltd. v. Frost Sand & Gravel Corp.

In an action to recover rental payments allegedly due under a lease agreement relating to certain communication equipment, defendant appeals from an order of the Supreme Court, Queens County, dated February 26, 1962, and entered in Nassau County, which granted plaintiff’s motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, there are triable issues of fact with respect to the alleged unsatisfactory condition of the equipment and the alleged attempts made by plaintiff’s assignor to correct such condition. Hence, it was improper to grant summary judgment. The question as to whether defendant is estopped from claiming a breach of contract should be determined after trial. Beldock, P. J., Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.