Chesnut Hill Real Estate Corp. v. Resnick

261 A.D.2d 352, 687 N.Y.S.2d 286, 1999 N.Y. App. Div. LEXIS 4486

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1999
• Status: Published

Opinion

—In an action to recover damages for breach of a guaranty, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), entered May 15, 1998, as granted that branch of the motion of the defendants third-party plaintiffs which was for reargument of the plaintiffs motion for summary judgment on the complaint and to dismiss the counterclaims of the defendants third-party plaintiffs and, upon reargument, denied the motion and reinstated the counterclaims.

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

Contrary to the plaintiffs contention, the Supreme Court did not err in granting that branch of the motion of the defendants third-party plaintiffs which was for reargument of the plaintiffs motion for summary judgment on the complaint and to dismiss the counterclaims of the defendants third-party plaintiffs and, upon reargument, denying the motion and reinstating the counterclaims. The defendants third-party plaintiffs have met their burden of demonstrating the existence of issues of fact warranting a trial (see, Zuckerman v City of New York, 49 NY2d 557, 559; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067), especially where the facts surrounding the transactions at issue are within the exclusive possession of the plaintiff and the third-party defendants (see, CPLR 3212 [f]; ATN Marts v Ireland, 195 AD2d 959, 960; Silverman v Arrow Linen Supply Co., 131 AD2d 459, 460). Santucci, J. P., Krausman, H. Miller and Feuerstein, JJ., concur.