Novak & Co. v. New York Fruit Auction Corp.

In an action, inter alia, on a contract, defendant appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Kings County, dated April 9, 1976, as (a) granted plaintiff’s motion for summary judgment as to the first cause of action, (b) directed the entry of judgment thereon and (c) severed the third cause of action and (2) the judgment of the same court entered thereon on April 29, 1976. Order reversed insofar as appealed from and judgment reversed, on the law, with one bill of $50 costs and disbursements to cover both appeals, and motion for summary judgment as to the first cause of action denied. The record discloses the existence of material issues of fact which can only be resolved upon a trial. Hopkins, Acting P. J., Martuscello, Damiani and Titone, JJ., concur.