Opinion
October 13, 1981
In an action to recover damages, inter alia, for fraud and breach of contract, arising out of the sale of real property and the construction of a dwelling thereon, plaintiffs appeal from an order of the Supreme Court, Westchester County (Burchell, J.), entered December 2, 1980, which denied their motion for summary judgment on their seventh cause of action, against defendant Puffbar Builders, Inc. Order affirmed, without costs or disbursements. Under the facts of this case, Special Term was incorrect in stating that plaintiffs had to establish a defect in the design or construction of the residence before summary judgment could be granted. However, there still exist questions of fact with respect to the sufficiency of defendant Puffbar's attempts to "correct and repair" the condition of standing water in the basement, as required in the contract, within the two-week period between plaintiffs' notification to it of the condition and their commencement of this action. Unresolved questions of fact require denial of a motion for summary judgment. (See Ugarriza v. Schmieder, 46 N.Y.2d 471; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395.) Hopkins, J.P., Gibbons, Rabin and Cohalan, JJ., concur.