Feldman v. Lasky

285 A.D. 1071, 139 N.Y.S.2d 709, 1955 N.Y. App. Div. LEXIS 6698

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 1955
• Status: Published

Opinion

In an action to recover damages for breach of contract, plaintiffs appeal from an order dated June 29, 1953, granting defendants’ motion for summary judgment and from the judgment entered thereon. Plaintiffs also appeal from an order dated September 16, 1953, granting reargument of the motion and adhering to the original determination. Order on reargument and judgment modified by inserting therein provisions that the respondents return to the appellants the certified check for $830 or cash in that amount. As so modified, order and judgment affirmed, with $10 costs and disbursements to respondents. Appeal from order dated June 29, 1953, dismissed, without costs. The affidavits submitted by appellants on the motions raised no triable issue as to the right of respondents to return the $830. No fact was stated which contradicted the claim of the respondents that manufacturing difficulties had prevented completion of the mold within eight weeks. Neither was any fact stated which showed the difficulties were self-created by the respondents or could have been avoided. Wenzel, MacCrate and Schmidt, JJ., concur; Nolan, P. J., and Beldock, J., concur in the dismissal of the appeal from the order dated June 29, 1953, but dissent as to the modification of the order on reargument and the judgment and vote to modify the order on reargument by deleting therefrom the provision that the original decision is adhered to and by substituting therefor a provision that the motion for summary judgment be denied, and to vacate the judgment, with the following memorandum: The record here presents a triable issue of fact which should not be resolved on a motion for summary judgment. (Cf. Newman v. Newark Fire Ins. Co., 281 App. Div. 852, and Suslensky v. Metropolitan Life Ins. Co., 180 Misc. 624, affd. 267 App. Div. 812.)