Diaz v. Nine

Appellate Division of the Supreme Court of New York

Diaz v. Nine

285 A.D. 933, 138 N.Y.S.2d 632

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 1955

StatusPublished

This text of 285 A.D. 933 (Diaz v. Nine) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Diaz v. Nine, 285 A.D. 933, 138 N.Y.S.2d 632 (N.Y. Ct. App. 1955).

Pincite

Opinion

Order and judgment unanimously reversed, with costs to the appellant, and plaintiffs’ motion for summary judgment denied. The provision of the contract that the “ Seller represents and warrants that basement may be lawfully occupied for dwelling purposes” is ambiguous and a trial of the issues is required. The notice of the department of housing and buildings of the City of New York that the premises were arranged and occupied as a multiple dwelling in violation of law is not determinative. The contract required that such a notice of violation should be complied with by the seller and the premises conveyed free of the violation. It is impossible to determine upon this motion that the violation could not have been removed by action of the seller prior to the agreed closing date. [934]*934Upon the present record the plaintiffs have not sufficiently established the cause of action alleged in the complaint to entitle them to summary judgment. Present — Callahan, J. P., Breitel, Bastow, Botein and Rabin, JJ.

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Order and judgment unanimously reversed, with costs to the appellant, and plaintiffs’ motion for summary judgment denied. The provision of the contract that the “ Seller represents and warrants that basement may be lawfully occupied for dwelling purposes” is ambiguous and a trial of the issues is required. The notice of the department of housing and buildings of the City of New York that the premises were arranged and occupied as a multiple dwelling in violation of law is not determinative. The contract required that such a notice of violation should be complied with by the seller and the premises conveyed free of the violation. It is impossible to determine upon this motion that the violation could not have been removed by action of the seller prior to the agreed closing date. [934]*934Upon the present record the plaintiffs have not sufficiently established the cause of action alleged in the complaint to entitle them to summary judgment. Present — Callahan, J. P., Breitel, Bastow, Botein and Rabin, JJ.

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Bluebook (online)

285 A.D. 933, 138 N.Y.S.2d 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diaz-v-nine-nyappdiv-1955.