Friendly Ice Cream Corp. v. Burckhardt

Appellate Division of the Supreme Court of New York

Friendly Ice Cream Corp. v. Burckhardt

59 A.D.2d 753, 398 N.Y.S.2d 858, 1977 N.Y. App. Div. LEXIS 13776

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

DecidedOctober 24, 1977

StatusPublished

This text of 59 A.D.2d 753 (Friendly Ice Cream Corp. v. Burckhardt) 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

Friendly Ice Cream Corp. v. Burckhardt, 59 A.D.2d 753, 398 N.Y.S.2d 858, 1977 N.Y. App. Div. LEXIS 13776 (N.Y. Ct. App. 1977).

Pincite

Opinion

In an action, inter alia, to recover moneys assertedly con[754]*754verted by defendant, plaintiff appeals (1) as limited by its brief, from so much of an order of the Supreme Court, Nassau County, dated November 15, 1976, as, inter alia, granted defendant’s motion for summary judgment, severed the latter’s counterclaims and vacated a prior order of attachment and (2) a judgment of the same court, dated December 17, 1976, entered thereon. Judgment reversed and order reversed insofar as appealed from, with $50 costs and disbursements, motion for summary judgment denied, order of attachment reinstated and action remanded to the Supreme Court for a trial on the issue of conversion and further proceedings consistent herewith. On this record we find issues of fact presented which can only be resolved at a plenary trial and preclude the granting of summary judgment. The record includes a sworn affidavit by appellant’s district manager which contradicts respondent’s assertions in support of his motion for summary judgment. Appellant should be granted an opportunity to prove its case at a trial on the merits. Hopkins, J. P., Latham, Margett and Rabin, JJ., concur.

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In an action, inter alia, to recover moneys assertedly con[754]*754verted by defendant, plaintiff appeals (1) as limited by its brief, from so much of an order of the Supreme Court, Nassau County, dated November 15, 1976, as, inter alia, granted defendant’s motion for summary judgment, severed the latter’s counterclaims and vacated a prior order of attachment and (2) a judgment of the same court, dated December 17, 1976, entered thereon. Judgment reversed and order reversed insofar as appealed from, with $50 costs and disbursements, motion for summary judgment denied, order of attachment reinstated and action remanded to the Supreme Court for a trial on the issue of conversion and further proceedings consistent herewith. On this record we find issues of fact presented which can only be resolved at a plenary trial and preclude the granting of summary judgment. The record includes a sworn affidavit by appellant’s district manager which contradicts respondent’s assertions in support of his motion for summary judgment. Appellant should be granted an opportunity to prove its case at a trial on the merits. Hopkins, J. P., Latham, Margett and Rabin, JJ., concur.

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Bluebook (online)

59 A.D.2d 753, 398 N.Y.S.2d 858, 1977 N.Y. App. Div. LEXIS 13776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friendly-ice-cream-corp-v-burckhardt-nyappdiv-1977.