Bills v. Marvic Construction Co.

19 Misc. 2d 556, 196 N.Y.S.2d 232, 1959 N.Y. Misc. LEXIS 2724

• Court: New York Supreme Court
• Decided: November 2, 1959
• Status: Published

Opinion

Mario Pittoni, J.

The plaintiffs’ motion for summary judgment is denied.

The moving papers do not contain any answer although the plaintiffs’ affidavit states that the defendant, Great East Neck Estates, Inc. has answered. There is nothing to show that the defendant, Marvic Construction Co., Inc., has answered. It filed no affidavit in opposition although copies of the motion papers herein were served upon it.

The motion must be denied as to defendant Marvic Construction Co., Inc., because a motion for summary judgment can be granted only after an answer has been interposed.

In respect to the defendant, Great East Neck Estates, Inc., there is no proof of the escrow agreement except the plaintiffs ’ affidavit. The defendant’s affidavit states categorically that there was an escrow agreement, but sets forth facts explaining the delivery of the $600 to Great East Neck Estates, Inc., which may, if proved, defeat its liability. Thus, because the court does not have the answer before it, and since the affidavits raise issues of fact, summary judgment cannot be granted. (Curry v. MacKensie, 239 N. Y. 267.)

Motion denied.