Opinion
May 28, 1992
Appeal from the Supreme Court, New York County (David B. Saxe, J.).
Both of defendant's counterclaims raise material issues of fact that cannot be resolved on a motion for summary judgment (see, Manufacturers Traders Trust Co. v. Cottrell, 71 A.D.2d 538). In particular, we note that, concerning the fraudulent misrepresentation claim, the "merger" and "as is" clauses in the contract do not preclude judicial inquiry into the specific claims of fraud as here alleged (see, Caramante v. Barton, 114 A.D.2d 680).
However, we agree with plaintiffs that, at this point in the action, the motion to vacate the stay of entry of the 1987 order of foreclosure and sale should be granted. A motion to vacate a stay on the grounds that it is no longer serving the ends of justice may be made at any time while the stay remains in effect (see, Haenel v. November November, 144 A.D.2d 298). In this case, plaintiffs have shown that further delay in foreclosure and sale could result in a significant reduction in the value of the leasehold. Defendant, on the other hand, seeks only damages on its counterclaims and has shown no reason why it will be prejudiced by prompt sale. Under such circumstances, we find that the motion to vacate the stay of foreclosure and sale should be granted.
Concur — Murphy, P.J., Carro, Ellerin, Asch and Smith, JJ.