Hopfan v. Harris

428 N.E.2d 392, 54 N.Y.2d 843, 444 N.Y.S.2d 60, 1981 N.Y. LEXIS 3050

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to plaintiff, and the certified question should be answered in the negative. Summary judgment was properly denied. Triable issues of fact were presented with respect to whether or not the managing agent was the alter ego of the defendant and, if not, whether the refusal of the managing agent to consent to the contract of sale was reasonable. The lower courts were correct in striking four of defendant’s eight affirmative defenses for the reason that they were insufficient as a matter of law. In addition, we find that defendant’s third affirmative defense that the death of the contract-vendee necessarily precluded the managing agent from consenting to the contract and thereby rendered performance impossible is also insufficient as a matter of law and should have been stricken as well.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to plaintiffs, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.