Arker v. Karmi

¶1In an action for specific performance of related agreements pertaining to 10 parcels of real property jointly owned or controlled by the parties, in which defendant has asserted a counterclaim sounding in fraud based upon an unrelated venture, defendant appeals from an order of the Supreme Court, Richmond County, dated April 3, 1974, which, upon plaintiff’s motion for summary judgment, (1) directed the parties to specifically perform in accordance with said agreements and (2) dismissed the answer, without prejudice to defendant’s commencing an action with regard to certain claims contained therein. Order modified, on the law and in the exercise of discretion, by deleting the third decretal paragraph thereof and substituting in its place a provision to the effect that the counterclaim pleaded in the answer is severed and allowed to proceed to trial. As so modified, order affirmed, without costs. The issues raised by the counterclaim require a trial, which should proceed without defendant’s having to commence a separate action. Gulotta, P. J., Hopkins, Martuscello, Latham and Christ, JJ., concur.