Cardone v. Cardone

185 A.D.2d 869, 586 N.Y.S.2d 999, 1992 N.Y. App. Div. LEXIS 10030

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 17, 1992
• Status: Published

Opinion

—In an action to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), entered September 5, 1990, as denied his motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

Approximately 10 months before his death, the defendant’s father conveyed a parcel of real property to the defendant. Approximately nine months prior to that, the father had transferred $45,000 to the defendant.

The plaintiff in this action is the defendant’s brother. He alleges that after the death of their father, he and the defendant agreed that the defendant would pay him one-half of the transferred cash and one-half of the value of the transferred property. Some payments were in fact made by the defendant. When the defendant ceased making payments, the plaintiff commenced the instant action, seeking the balance allegedly due. He moved for summary judgment. The defendant cross-moved for the same relief. The court denied both applications. We affirm.

The conflicting affidavits submitted by the parties create genuine issues of fact concerning, but not limited to, the existence, nature, and terms of the purported agreement between the parties (see, Chase v Skoy, 146 AD2d 563). Under such circumstances, the Supreme Court properly denied the plaintiff’s motion for summary judgment (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Balletta, J. P., Miller, Pizzuto and Santucci, JJ., concur.