Schoenfeld v. Atomic Products Corp.

In an action by a vendefe for specific performance of a contract to sell real property, in which defendant counterclaimed to recover damages for fraud, defendant appeals from an order-judgment (one paper) of the Supreme Court, Suffolk County, entered April 14, 1971, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for sumary judgment. Order-judgment modified by striking therefrom all the decretal provisions other than the one which denied the cross motion and by adding thereto a provision that plaintiff’s motion is denied. As so modified, order-judgment affirmed, without costs. The record presents disputed issues of fact as to plaintiff’s alleged fraudulent misrepresentations (Steinbruck v. Gazzara, 15 A D 2d 507; Rizzi v. Sussman, 9 A D 2d 961) and defendant’s defenses of cancellation (Royce v. Rymkevitch, 29 A D 2d 1029) and laches (Northern Operating Corp. v. Anopol, 25 A D 2d 551). These issues should only be resolved after trial. Rabin, P. J., Hopkins, Christ, Brennan and Benjamin, JJ., concur.