El-Saidi v Oren

[*1] El-Saidi v Oren 2006 NY Slip Op 52225(U) [13 Misc 3d 138(A)] Decided on October 27, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., GOLIA and RIOS, JJ
2005-1561 Q C.

Hassan A. El-Saidi, Respondent,

against

Matthew E. Oren, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered August 11, 2005. The order, insofar as appealed from as limited by defendant's brief, denied defendant's cross motion for summary judgment dismissing the complaint and for summary judgment upon his first counterclaim.

Order, insofar as appealed from, affirmed without costs.

Plaintiff, the purchaser under a contract of sale of a cooperative apartment who entered into possession of the apartment pursuant to an interim lease, brought this action seeking damages for defendant's alleged breach of the contract of sale. As a first counterclaim, defendant sought rent alleged to have accrued before plaintiff vacated the apartment. Insofar as relevant to this appeal, the court below denied a cross motion by defendant for summary judgment dismissing the complaint and for summary judgment upon his first counterclaim. We agree with this determination and affirm.

Defendant failed to make out a prima facie case of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]). Resolution of the present matter turns upon issues of fact that may not be resolved upon a motion for summary judgment (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The sufficiency of performance pursuant to a contract of sale is a question of fact for the trier of fact, and is not generally amenable to resolution by summary judgment (see Companion v [*2]Touchstone, 88 NY2d 1043, 1048 [1996]). Many issues of fact are raised in the parties' submissions concerning whether there was a breach of the contract of sale and, if so, by whom and at what point, as well as issues concerning the circumstances of the interim lease. As resolution of the amount of rent due depends in part upon whether and at what point the contract of sale was breached
(part of the rent was to be applied toward payment of the purchase money mortgage), denial of summary judgment on all issues was proper.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: October 27, 2006