Opinion
June 15, 1981
In an action wherein plaintiff moved for summary judgment in lieu of complaint pursuant to CPLR 3213, defendant appeals from (1) an order of the Supreme Court, Kings County (Jordan, J.), entered October 18, 1979, which granted reargument of plaintiff's motion for summary judgment, which had been denied by order dated May 21, 1979, vacated said order and granted summary judgment to the plaintiff in the principal sum of $76,050.12 and (2) a judgment of the same court entered thereon on October 23, 1979. The appeals bring up for review so much of an order of the same court dated January 7, 1981, as, upon granting reargument, adhered to the determination granting the motion for summary judgment. Appeals from order entered October 18, 1979 and judgment entered October 23, 1979 dismissed as academic, without costs or disbursements. The order and judgment were superseded by the order dated January 7, 1981. Order dated January 7, 1981 reversed insofar as reviewed, without costs or disbursements, order entered October 18, 1979 and judgment entered October 23, 1979 vacated and motion for summary judgment denied. There is an issue of fact as to whether plaintiff was purely an accommodation obligor, or whether the delivery of 5,000 shares of stock of the defendant corporation to plaintiff's wife, possibly together with other considerations, were either in consideration of plaintiff's agreement to provide security for defendant's loans from Banco de Ponce or in reduction of plaintiff's claim against defendant for indemnification. Hopkins, J.P., Gulotta, Margett and O'Connor, JJ., concur.