Bronson v. March

127 A.D.2d 810, 512 N.Y.S.2d 5, 1987 N.Y. App. Div. LEXIS 43303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1987
• Status: Published

Opinion

In an action to recover damages for breach of a contract to purchase real property, (1) the defendant A. Fred March appeals from so much of an order of the Supreme Court, Suffolk County (Mclnerney, J.), dated May 21, 1985, as denied his motion for summary judgment dismissing the complaint, and (2) the additional defendant on the counterclaims appeals from so much of the same order that denied his cross motion for summary judgment dismissing the counterclaims.

Ordered that the order is affirmed, with one bill of costs to the plaintiff.

The defendant March submitted the highest bids at a public auction of three properties offered for sale by the plaintiff. In this action brought by the plaintiff for breach of an agreement to purchase the properties, March moved for summary judgment. This motion was properly denied because there are triable issues of fact. Special Term also properly denied summary judgment to the additional defendant on the counterclaims since the affidavits raise issues of credibility which cannot be resolved on a summary judgment motion (see, Missan v Schoenfeld, 95 AD2d 198, appeal dismissed 60 NY2d 860). Thompson, J. P., Lawrence, Kunzeman and Sullivan, JJ., concur.