Akseizer v. Kramer

Appellate Division of the Supreme Court of New York

Akseizer v. Kramer

265 A.D.2d 356, 696 N.Y.S.2d 849, 1999 N.Y. App. Div. LEXIS 10238

Appellate Division of the Supreme Court of the State of New York·Decided October 12, 1999·Published·Cited by 7 cases

Opinion

—In an action to recover damages for fraudulent concealment and misappropriation, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Franco, J.), entered July 13, 1998, as denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

It is well settled that summary judgment is a drastic remedy that is to be granted only where there is no clear triable issue of fact (see, Andre v Pomeroy, 35 NY2d 361). In deciding the motion, the evidence must be viewed in the light most favorable to the opposing party (see, Matter of Benincasa v Garrubbo, 141 AD2d 636). Here, the record presents triable issues of fact as to whether the defendant intentionally concealed and failed to disclose material information to the plaintiffs relating to their investment, and as to whether the defendant misappropriated a portion of the plaintiffs’ funds. Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. Joy, J. P., Krausman, H. Miller and Feuerstein, JJ., concur.

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—In an action to recover damages for fraudulent concealment and misappropriation, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Franco, J.), entered July 13, 1998, as denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

It is well settled that summary judgment is a drastic remedy that is to be granted only where there is no clear triable issue of fact (see, Andre v Pomeroy, 35 NY2d 361). In deciding the motion, the evidence must be viewed in the light most favorable to the opposing party (see, Matter of Benincasa v Garrubbo, 141 AD2d 636). Here, the record presents triable issues of fact as to whether the defendant intentionally concealed and failed to disclose material information to the plaintiffs relating to their investment, and as to whether the defendant misappropriated a portion of the plaintiffs’ funds. Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. Joy, J. P., Krausman, H. Miller and Feuerstein, JJ., concur.

Akseizer v. Kramer, 265 A.D.2d 356, 696 N.Y.S.2d 849, 1999 N.Y. App. Div. LEXIS 10238 (N.Y. Ct. App. 1999).

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265 A.D.2d 356 (Akseizer v. Kramer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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