Opinion
July 9, 1973
In an action, by an assignee of an option to buy certain real property, for specific performance by the owner and for damages, plaintiff appeals from (1) a judgment of the Supreme Court, Suffolk County, entered December 5, 1972, against it and in favor of defendant Eric Builders, Inc., pursuant to an order of said court, dated November 22, 1972, which dismissed the two causes of action that are against said defendant, and (2) an order of the same court, entered January 5, 1973, which, on motion of defendant Felt Parts Co., Inc., dismissed the second and fourth causes of action. Judgment reversed; order dated November 22, 1972 modified by striking therefrom the word "granted" and substituting therefor the word "denied"; order entered January 5, 1973 reversed; and motion by defendant Felt Parts Co., Inc., denied. The time within which defendants Eric Builders, Inc., and Felt Parts Co., Inc., may answer the complaint is extended until 20 days after entry of the order to be made hereon. A single bill of $20 costs and disbursements to cover both appeals is awarded to plaintiff jointly against said defendants. In our opinion, there are issues of fact which cannot be sloughed off on motions of the character under review and the documentary proof submitted by the moving defendants does not conclusively refute plaintiff's claims. Rabin, P.J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.