66 A.D.2d 809 | N.Y. App. Div. | 1978
In an action to recover damages arising out of an auction sale, the plaintiff appeals from an order of the Supreme Court, Westchester County, entered August 11, 1978, which granted summary judgment to the defendant. Order modified, on the law, by adding the following at the end of the provision granting summary judgment to the defendant, "except as to the second cause of action”. As so modified, order affirmed, without costs or disbursements. Special Term, treating the defendant’s CPLR 3211 (subd [a]) motion as one for summary judgment, dismissed the complaint. The dismissal is improper insofar as the complaint states a cause of action and the record creates doubt about the existence of a triable issue of fact (see Gendelman Rigging & Trucking v Koeppel, 29 AD2d 540). In his first cause of action, the plaintiff alleges that he attended an auction conducted by the defendant and bid $25,000 for Lot No. 73. The auctioneer, however, improperly reopened bidding after knocking the item down. In his second cause of action, the plaintiff alleges that he successfully bid on several items at the auction and paid for them, but the defendant refused to turn certain items over to him until all of the items