Abt v. Lawrence

Motion for modification of the decision and order of this court ( 167 AD2d 234 ) entered on November 15, 1990 granted to extent of recalling and vacating that decision and order and substituting a new decision and order therefor, as follows:

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered on February 28, 1990, which denied plaintiff’s motion pursuant to CPLR 2221 for renewal of a prior motion for partial summary judgment, unanimously affirmed, without costs.

In this dispute over the compensations allegedly due to plaintiff for his services in connection with a real estate transaction, the IAS court previously determined that there were issues of fact as to the intent of the parties precluding a grant of plaintiff’s original motion for partial summary judgment. This court affirmed ( 154 AD2d 958 ). Renewal of the motion for summary judgment was properly denied. Plaintiff did not present any new material facts (see, Bayridge Air Rights v Blitman Constr. Corp., 160 AD2d 589 , 590). In any event, plaintiff has at most raised additional issues of fact which warrant a trial (see, James v Nestor, 120 AD2d 442 , 443). The decision and order of this court entered on November 15, 1990 is recalled and vacated. Concur—Kupferman, J. P., Carro, Ellerin, Wallach and Smith, JJ.