Opinion
December 20, 1994
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
Given the conflicting terms of the parties' agreement and the promissory note regarding plaintiffs' remedies in the event of a default as well as the evident questions of fact regarding the alleged subsequent modification of the agreement and its effect on the note, summary judgment should have been denied. Moreover, inasmuch as it also appears from the affidavits in opposition that there exist possible counterclaims relating to the alleged cash payment at the closing and the consequent reduction of the amount of the note which are inextricably intertwined with the relief sought, defendants should be afforded an opportunity to raise any such counterclaims in their answer. With regard to defendants' cross-motion to disqualify counsel, such motion is premature at this point, given the present state of the record.
Concur — Sullivan, J.P., Ellerin, Kupferman and Williams, JJ.