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Stackman v. Devine

Appellate Division of the Supreme Court of New York, Third Department
Jul 15, 1976
53 A.D.2d 971 (N.Y. App. Div. 1976)

Opinion

July 15, 1976


Appeal from an order of the Supreme Court at Special Term, entered June 1, 1973 in Albany County, which denied plaintiff's motion for summary judgment. Plaintiff appeals from the denial of his motion for summary judgment in lieu of complaint, based upon a promissory note executed by the defendant to the plaintiff (CPLR 3213). The defendant states in an affidavit that the note was executed following the termination of a joint venture in which he was engaged with the plaintiff, and that it was intended to represent a certain balance due and owing from the defendant to the plaintiff; that the plaintiff misrepresented to the defendant the status of the account between them, which representation was relied on by the defendant; and that he was fraudulently induced to execute the note in question obligating him to pay a sum of money which was not, in fact, owing to the plaintiff. Under the circumstances, since the defendant has demonstrated that he has an arguable defense to the action, a trial of the issues should be had, and summary judgment was properly denied by Special Term (Jiffy Sew Corp. v Paar, 29 A.D.2d 643, 644; see, also, Rediscount Corp. of Amer. v Duke, 34 A.D.2d 898). Order affirmed, without costs. Koreman, P.J., Greenblott, Kane, Mahoney and Larkin, JJ., concur.


Summaries of

Stackman v. Devine

Appellate Division of the Supreme Court of New York, Third Department
Jul 15, 1976
53 A.D.2d 971 (N.Y. App. Div. 1976)
Case details for

Stackman v. Devine

Case Details

Full title:GEORGE A. STACKMAN, III, Appellant, v. JOHN F. DEVINE, Respondent

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 15, 1976

Citations

53 A.D.2d 971 (N.Y. App. Div. 1976)

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