Santomauro v. Pollio Products Corp.

On the present record, the charges of bad faith asserted against petitioner stand undenied. The allegations that petitioner was consorting with competitors raised a substantial issue of fact as to his good faith (Matter of Sunny dale Farms v. Premium Dairy Co., 7 A D 2d 737 ). Under all the circumstances, the learned Special Term Justice was not free, on this record, to exercise his discretion and to conclude that petitioner had shown good faith; he was required to defer the determination of that issue until after a hearing (Matter of Breswick & Co. v. Greater N. Y. Inds., 308 N. Y. 1041 , 1043; Matter of Schwartz v. Travelers Hotel, 5 A D 2d 880 ; Matter of Schwartz v. Travelers Hotel, 7 A D 2d 848 ; Matter of Carthage Paper Makers v. Mutual Box Bd. Co., 2 A D 175 , 177-178). Christ, Brennan, Hill and Rabin, JJ., concur; Ughetta, Acting P. J., not voting.