Opinion
December 29, 1972
In an action upon two promissory notes and other instruments for the payment of money, defendants appeal from (1) an order of the Supreme Court, Westchester County, entered February 7, 1972, which granted plaintiff's motion for summary judgment in lieu of a complaint (CPLR 3213), and (2) a judgment of the same court, entered the same day. Appeal from judgment dismissed, without prejudice to such motion as appellants may be advised to make at Special Term with respect to the judgment. No judgment was included in the record. Order reversed and motion denied. Appellants are awarded one bill of $10 costs and disbursements to cover both appeals. In our opinion a triable issue exists with respect to the meaning of paragraph 7 of the April 8, 1970 agreement entered into between plaintiff and defendant Alac Corp. Therefore, it cannot be determined whether it was intended that defendants would be precluded from raising as a defense to this action the alleged failure of plaintiff to do certain work as set forth in the agreement. Under the circumstances, summary judgment should not have been granted. Latham, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.