Raul Cleaners Corp. v. Kim's Landmark Cleaners Corp.

210 A.D.2d 144, 621 N.Y.S.2d 847, 1994 N.Y. App. Div. LEXIS 12992

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1994
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Beatrice Shainswit, J.), entered November 23, 1993, which, to the extent appealed from, granted plaintiffs’ motion for summary judgment on a promissory note in the amount of $293,510.84 as well as foreclosure and possession of the subject premises and denied defendants’ cross-motion to disqualify plaintiffs’ counsel, unanimously modified, on the law, only to the extent of denying plaintiffs’ motion for summary judgment and directing defendants to serve and file their answer to the complaint within 20 days of service upon them of a copy of this Court’s order with notice of entry and, as so modified, the order is otherwise affirmed, without costs.

Given the conflicting terms of the parties’ agreement and the promissory note regarding plaintiffs’ remedies in the event of a default as well as the evident questions of fact regarding the alleged subsequent modification of the agreement and its effect on the note, summary judgment should have been denied. Moreover, inasmuch as it also appears from the affidavits in opposition that there exist possible counterclaims relating to the alleged cash payment at the closing and the consequent reduction of the amount of the note which are inextricably intertwined with the relief sought, defendants should be afforded an opportunity to raise any such counterclaims in their answer. With regard to defendants’ cross-motion to disqualify counsel, such motion is premature at this point, given the present state of the record. Concur—Sullivan, J. P., Ellerin, Kupferman and Williams, JJ.