Double Fortune Property Investors Corp. v. Gordon

55 A.D.3d 406, 866 N.Y.S.2d 111

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 10, 2008, which denied defendant escrow agent’s motion to strike the complaint and granted plaintiffs cross motion for summary judgment on its claim for return of the escrowed funds, unanimously affirmed, with costs.

The escrow agreement contained no definite term and therefore was terminable at will (Interweb, Inc. v iPayment, Inc., 12 AD3d 164 [2004], lv dismissed 4 NY3d 776 [2005]). Defendant failed to identify any facts in plaintiffs exclusive possession that might have precluded summary judgment pursuant to CPLR 3212 (f). Given that plaintiff merely terminated an at-will contract, defendant failed to raise an issue of fact as to his affirmative defenses of estoppel, waiver, laches, or unclean hands (see id.). Defendant’s contentions concerning his defense of failure to state a cause of action are unavailing.

Plaintiff having responded to defendant’s discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124 (see Barber v Ford Motor Co., 250 AD2d 552 [1998]). Concur—Tom, J.P, Gonzalez, Williams, Moskowitz and Freedman, JJ.