Tavernier v. Toner

159 A.D.2d 1011

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1990
• Status: Published

Opinion

Order unanimously affirmed with costs. Memorandum: There are triable questions of fact precluding summary judgment for defendants on plaintiff’s claim for breach of an alleged agreement for joint ownership in the corporation. Similarly, questions of fact preclude summary judgment for defendants on their defenses based on the Statute of Limitations (see, Tavernier v Toner, 134 AD2d 972 [affirming without opinion denial of defendants’ motion for summary judgment on timeliness grounds]), laches, abandonment, and lack or failure of consideration. Finally, defendants failed to establish their entitlement to summary judgment either dismissing the action as against the corporation, or dismissing the action against all defendants based on the Statute of Frauds (see, General Obligations Law § 5-701 [a] [1]; North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 175-176). (Appeal from order of Supreme Court, Erie County, Joslin, J. — summary judgment.) Present — Callahan, J. P., Denman, Boomer, Balio and Lowery, JJ.