69 A.D.2d 850 | N.Y. App. Div. | 1979
In an action for specific performance of a contract to sell real property, plaintiff appeals from an order of the Supreme Court, Westchester County, dated October 6, 1978, which denied his motion for" summary judgment or, in the alternative, for an order specifying the facts not in dispute, the facts deemed established and the triable issues of fact raised. Order affirmed, with separate bills of $50 costs and disbursements to each respondent. We agree with Special Term that there are issues of fact which require a plenary trial. We note that: (1) The contracts attached to plaintiff’s moving papers and defendant Dutcher’s opposition papers contain markings indicating that the price figures were changed from that claimed by plaintiff. The alterations suggest (as claimed by Ms. Dutcher) that she never agreed to sell Lot No. 23, or at the most, agreed to sell only 400 square feet of that lot. (2) The opposition papers of Ms. Dutcher set forth key documentary evidence not mentioned in the moving papers, viz., (a) a third option, and (b) a $300 refund check given to and deposited by plaintiff, all of which reflect her intent not to sell all of Lot No. 23, or at the most, to sell only 400 square feet of that lot, and then only if made necessary by a decision of the Village of Irvington Zoning Board of Appeals. (3) The papers contain ample evidence that there is an issue of fact as to whether undue' influence or duress was used by plaintiff and his attorney to procure the contract from the 75-year-old Ms. Dutcher, who did not have a lawyer. Damiani, J. P., Shapiro, Margett and Martuscello, JJ., concur.
