Opinion
December 31, 1964
In an action to recover the sum of $1,000 alleged to be due to the plaintiff under an escrow agreement, the defendants appeal: (a) from an order of the Supreme Court, Westchester County, dated March 12, 1964, which granted plaintiff's motion for summary judgment; and (b) from the judgment entered the same date in plaintiff's favor, pursuant to said order. Order and judgment reversed, with one bill of $10 costs and disbursements; and plaintiff's motion for summary judgment denied. In our opinion, there were bona fide triable issues of fact at least with respect to whether plaintiff prevented the performance of the work to be done by the defendant T-Jay Homes, Inc., under the escrow agreement; and with respect to the number of items which were uncompleted under the terms of the escrow agreement. In view of the existence of such issues, it was error to grant summary judgment (cf. Falk v. Goodman, 7 N.Y.2d 87, 91; Stone v. Goodson, 8 N.Y.2d 8, 12). Ughetta, Acting P.J., Christ, Brennan, Hill and Hopkins, JJ., concur.