(Download) "Joseph Purta v. Leokadia Cisz" by Supreme Court of New York * eBook PDF Kindle ePub Free
eBook details
- Title: Joseph Purta v. Leokadia Cisz
- Author : Supreme Court of New York
- Release Date : January 18, 1973
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 63 KB
Description
Defendant's motion to dismiss the complaint was made on the ground of a release (CPLR 3211, subd. [a], par. 5). Special Term erred in its grant of the motion. Release is not the issue. The real question is whether the release was obtained by means of fraud. Defendant's motion cannot be granted since there is a factual issue as to whether the release was obtained by means of fraud (Scheer v. Long Is. R. R. Co., 282 App. Div. 724; Bruce v. Berroco, Inc., 35 Misc. 2d 669; see, also, Fleming v. Ponziani, 24 N.Y.2d 105, 111; Mangini v. McClurg, 24 N.Y.2d 556, 563). This is a proper case for the application of CPLR 3211 (subd. [c]). The motion should have been treated as one for summary judgment, with an immediate trial of the issues raised. Disposition Order entered October 3, 1972, reversed insofar as appealed from; motion to dismiss the complaint is hereby treated as one for summary judgment and is remitted to the Special Term for an immediate trial pursuant to CPLR 3211 (subd. [c]). Appeal from order dated November 10, 1972 dismissed. No appeal lies from an order which denies reargument of a motion. A single bill of $20 costs and disbursements, to cover both appeals, is awarded to the successful party or parties on the trial herein directed.