Gersten v. Fox

Order, Supreme Court, New York County, entered December 6, 1977 granting reargument and on reargument adhering to original decision, granting plaintiffs cross motion for summary judgment and denying defendants’ motion to dismiss the complaint, is unanimously modified, on the law, to the extent that plaintiffs cross motion for summary judgment is denied, and the order is otherwise affirmed, without costs and without disbursements. The appeal from the order of September 22, 1977, is dismissed as moot, without costs and disbursements. The written agreement between the parties is ambiguous; it leaves issues of fact as to the legal relationship of the parties, what would constitute performance by plaintiff and conditions entitling plaintiff to a commission, whether plaintiffs performance met such standard and conditions, and whether defendants acted in good faith. Concur—Kupferman, J. P., Silverman, Evans, Lane and Markewich, JJ.