Opinion
December 7, 1989
Appeal from the Supreme Court, New York County (David H. Edwards, Jr., J.).
Questions of fact concerning the status of the apartment make this case inappropriate for disposition by means of summary judgment. There are sufficient collateral writings (see, Crabtree v Arden Sales Corp., 305 N.Y. 48; Marks v Cowdin, 226 N.Y. 138) so as to provide a basis for admitting parol evidence regarding the nature of this transaction and, thereby, satisfy the Statute of Frauds as a matter of law (see, Iandoli v Asiatic Petroleum Corp., 57 A.D.2d 815, lv dismissed 42 N.Y.2d 1011). The prime tenant's admitted lack of any connection with the control or occupancy of the apartment raises the question of an illusory tenant and whether equity should impose a constructive trust on the premises in plaintiff's favor (Simonds v Simonds, 45 N.Y.2d 233).
Concur — Asch, J.P., Milonas, Ellerin and Wallach, JJ.