Opinion
February 17, 1998
Appeal from the Supreme Court, Queens County (LeVine, J.).
Ordered that the judgment is reversed, with costs, and the complaint is reinstated.
Where there are conflicting factual allegations concerning whether a deed was delivered and accepted with the intent to convey an interest in property, the questions raised should be resolved by a jury ( see, Ten Eyck v. Whitbeck, 156 N.Y. 341, 352; 4 Warren's Weed, New York Real Property, Delivery, § 2 [4th ed]; 1 Rasch, New York Law Practice of Real Property § 24:162, at 879 [2d ed]). Because the allegations of the parties create a question of fact as to whether the deed was delivered and accepted, the court erred in dismissing the complaint.
Miller, J. P., Ritter, Pizzuto and Altman, JJ., concur.