Shapiro v. Prudential Theaters — 75 Misc. 2d 752

Majority

p. 752

Sidney Shapiro et al., Respondents, v. Prudential Theaters, Appellant.

Supreme Court, Appellate Term, Second Department,

November 10, 1972.

p. 753

William Gold for appellant.

Plaintiffs seek to recover moneys allegedly owed to them as winners of a contest and defendant has raised the affirmative defense that plaintiffs participated in an illegal transaction. The opposing papers indicate the existence of mixed questions of fact and law which should be resolved at a plenary trial.

Technical defects in plaintiffs’ pleadings, if any, are unavailable to the moving defendant, for it is well settled that upon an application, summary judgment will be denied if the adversary shows facts sufficient to warrant a trial (Curry v. Mackenzie, 239 N. Y. 267 ).

The order should be affirmed, without costs.

Concur — Hogan, P. J., G-lickman and Pittoni, JJ.

Order affirmed, etc.

Cases cited

Curry v. Mackenzie 239 N. Y. 267 N.Y. 1925-01-21 p. 753