Martinez v. Suozzi

173 A.D.2d 411

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered on or about January 15, 1991, which, inter alia, denied plaintiff’s motion for partial summary judgment, unanimously affirmed, without costs.

The plaintiff, who claims that he was fraudulently induced to purchase the subject premises by representations that all of the tenancies were rent stabilized and not rent controlled, moved for "partial summary judgment” seeking a declaration of seven specific underlying facts, four of which are admitted in defendant Suozzi’s Responses to Plaintiffs Notice to Admit, and are no longer in dispute for the purposes of the pending action (see, CPLR 3123). As to the remaining allegations on which the plaintiff seeks summary disposition, there is a triable issue of fact as to whether or not the plaintiff justifiably relied on the alleged representations (see, e.g., Yuzwak v Dygert, 144 AD2d 938), as well as to whether or not plaintiff could have discovered the true facts (see, e.g., Black v Chittenden, 69 NY2d 665). Also, a triable issue of fact as to the rent regulated status of the subject apartments is created by documents submitted on an unrelated motion by defendant Zegen, suggesting that the apartments were rent stabilized.

Discovery should proceed as ordered. Concur—Rosenberger, J. P., Ellerin, Kupferman, Asch and Smith, JJ.