Dingle v. Glass

247 A.D.2d 507, 668 N.Y.S.2d 478, 1998 N.Y. App. Div. LEXIS 1493

Opinion

In an action, inter alia, for a judgment declaring a deed null and void, the plaintiff appeals from a judgment of the Supreme Court, Queens County (LeVine, J.), dated November 22, 1996, which dismissed the complaint.

Ordered that the judgment is reversed, with costs, and the complaint is reinstated.

Where there are conflicting factual allegations concerning whether a deed was delivered and accepted with the intent to convey an interest in property, the questions raised should be resolved by a jury (see, Ten Eyck v Whitbeck, 156 NY 341, 352; 4 Warren’s Weed, New York Real Property, Delivery, § 2 [4th ed]; 1 Rasch, New York Law and Practice of Real Property § 24:162, at 879 [2d ed]). Because the allegations of the parties create a question of fact as to whether the deed was delivered and accepted, the court erred in dismissing the complaint.

Miller, J. P., Ritter, Pizzuto and Altman, JJ., concur.