38 A.D.2d 971 | N.Y. App. Div. | 1972
In this action to recover moneys alleged to be owing as a termination salary, defendant appeals from an order and judgment (one paper) of the Supreme Court, Westchester County, entered May 25, 1971, granting plaintiff’s motion for summary judgment. Order and judgment reversed, on the law, with $20 costs and disbursements, and motion for summary judgment denied. In our opinion, the record establishes that there are issues in this action which should be determined at a trial (cf. Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395, 404; Millerton Agway Coop. v. Briar-cliff Farms, 17 N Y 2d 57, 61). Concerning defendant’s affirmative defense that the letter agreement dated December 22, 1966 was conditioned upon and part of an over-all oral understanding that it was to be ineffective if the parties later consummated the stock purchase and repurchase contract referred to in that defense, it is our view that parol evidence may be introduced to support that defense (Hicks v. Bush, 10 N Y 2d 488, 491; Hoagland, Allum & Co. v. Allan-Norman Holding Corp., 228 App. Div. 133,135). Shapiro, Gulotta, Christ and Brennan, JJ., concur; Hopkins, Acting P. J., concurs in result, with the following memorandum: I agree that there are issues of fact which must be determined at a trial. However, I do not agree that the affirmative defense alleged by defendant concerning the oral understanding as to the stock purchase and repurchase contract would not violate the parol evidence rule.