Opinion
October 25, 1976
In an action inter alia to recover a deposit made pursuant to a contract for the sale of real property, plaintiff appeals from an order of the Supreme Court, Nassau County, dated March 17, 1976, which (1) granted defendant's motion to dismiss its complaint and (2) severed the defendant's counterclaim so as to survive the dismissal. Order affirmed, with $50 costs and disbursements. The plaintiff has not raised an issue which casts doubt on either the verity or the conclusiveness of the documentary record. Enough facts have been established, prima facie, by the documentary record to support the legal defense put forth by the defendant (see Lederer v Wise Shoe Co., 276 N.Y. 459; Lawrence v Miller, 86 N.Y. 131). Dismissal of the complaint was therefore proper. Gulotta, P.J., Hopkins, Latham, Shapiro and Hawkins, JJ., concur.