ATIFA v Mohammed Akbar Shairzad

ATIFA v Shairzad 2006 NY Slip Op 00135 [25 AD3d 527] January 10, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 22, 2006

ATIFA, Doing Business as Masjid Hazrat Abubakr, Respondent,
v
Mohammed Akbar Shairzad, Appellant, et al., Defendants. (Action No. 1.) Masjid Hazrat Abubakr, Appellant, v ATIFA, Respondent. (Action No. 2.)

—[*1]In an action, inter alia, to enjoin the defendants in Action No. 1 from entering upon real property located at 141-47 33rd Avenue, Flushing, New York, and for an accounting, and a related action, inter alia, for a judgment declaring that legal and equitable title to the real property located at 141-47 33rd Avenue and 141-49 33rd Avenue, Flushing, New York, belongs to the plaintiff in Action No. 2, which were joined for trial, (1) the defendant Mohammed Akbar Shairzad in Action No. 1 appeals from a judgment of the Supreme Court, Queens County (Flug, J.), entered August 25, 2004, which, in effect, upon granting the motion of the plaintiff in Action No. 1 pursuant to CPLR 4401, made at the close of all the evidence, for judgment as a matter of law, is in favor of the plaintiff and against him in Action No. 1, and (2) the plaintiff in Action No. 2 appeals from a judgment of the same court, also entered August 25, 2004, which, in effect, upon granting the motion of the defendant in Action No. 2 pursuant to CPLR 4401, made at the close of all the evidence, for [*2]judgment as a matter of law on its counterclaims and to dismiss the complaint, is in favor of the defendant and against it in Action No. 2, and declared that the defendant in Action No. 2 is the lawful owner and is vested with absolute title to the property located at 141-49 33rd Avenue, Flushing, New York.

Ordered that the judgments are reversed, on the law and the facts, the motions are denied, the pleadings are reinstated, and a new trial ordered, with costs to abide the event.

Based upon this record, we find that questions of fact existed at the conclusion of the parties' evidence that required determination by the jury (see generally CPLR 4401; Singer v Long Is. Light. Co., 211 AD2d 779, 780 [1995]). H. Miller, J.P., Luciano, Dillon and Covello, JJ., concur.