Crompton-Richmond Co. v. Peterson

Order, Supreme Court, New York County, entered on September 8, 1971, granting motion for summary judgment pursuant to CPLR 3213, in favor of plaintiff in the sum of $8,507.35, and the judgment of said court entered thereon on September 16, 1971, unanimously reversed on the law, the judgment vacated, and the motion denied, with costs to abide final disposition; in view of the denial, we «Iso think it advisable, and we so direct, that formal pleadings be served. We predicate our denial of the motion on the ground that the record discloses issues of fact precluding summary judgment. Although the motion is based on promissory notes, defenses have been raised herein, which, if true, 'may militate against the granting of the relief asked for. (Millerton Agway Coop. v. Briarcliff Farms, 17 N Y 2d 57; Rediscount Corp. of Amer. v. Duke, 34 A D 2d 898.) We find an arguable basis for factual issues as to whether plaintiff instigated and induced precipitate haste in the obtaining of insurance on the life of Mahler; whether the plaintiff actually assumed control of Empire and of all its assets, although it was the principal obligor of the notes, and thus manipulated its ability to meet obligations on the notes; and, we note, it is also contended that the plaintiff, instead of paying, further induced defendant to make a partial principal payment to the Lincoln Bank, although at the time the defendant could have minimized his loss; and that further, plaintiff continued to promise to pay the premiums or the loans, and so further induced 647 the defendant to indorse the notes over to the plaintiff. Only the trial process can assay the truth of these contentions. On this presentation there are too many cross-currents and too many mixed questions of law and fact to warrant summary judgment. (Lachs v. Fidelity & Cas. Co. of N. Y., 306 N. Y. 357, 364; Glick & Dolleck v. Tri-Pac Export Corp., 22 N Y 2d 439, 441. Concur — McGivern, J. P., Kupferman, McNally, Capozzoli and Machen, JJ.