H & M Heating Utilities v. Teplitz

24 A.D.2d 468, 260 N.Y.S.2d 749, 1965 N.Y. App. Div. LEXIS 3933

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1965
• Status: Published

Opinion

In a consolidated action to recover the purchase price of fuel oil sold and delivered, defendant Teplitz appeals: (1) from so much of an order and judgment (one paper) of the Supreme Court, Kings County, entered August 20, 1963, as awarded partial summary judgment to the plaintiff against him; severed the action as to the balance of the purchase price and as to the other defendants; and denied his cross motion for summary judgment dismissing the complaint against him; and (2) from an order of said court entered September 23, 1964 which denied his motion for reargument and renewal with respect to the said motions for summary judgment. Appeal from order of September 23, 1964, dismissed. An order denying a motion for reargument is not appealable. Order of August 20, 1964 modified as follows: (1) by striking out all its decretal paragraphs, except the fourth which denies the defendant Teplitz’ cross motion for summary judgment; and (2) by substituting therefor a paragraph denying plaintiff’s motion for summary judgment against all the defendants, including Teplitz. As so modified, order, insofar as appealed from, affirmed, without costs; and judgment vacated. In our opinion, the record presents issues of fact as to whether the corporate defendant or the individual defendant Teplitz or any other person is obligated to pay for the fuel oil sold by plaintiff and delivered to the MeKibben Street premises. Such issues must be resolved by appropriate findings after a plenary trial. Beldoek, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.