SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
October 15, 1968
G. GIOSPI COMPANY, RESPONDENT,
ALEX KAUFMAN, INDIVIDUALLY AND DOING BUSINESS AS KAUFMAN'S FINE IMPORTED SHOES, APPELLANT
Concur -- Botein, P. J., Stevens, Eager, Tilzer and Rabin, JJ.
Summary judgment in favor of plaintiff dated November 10, 1967 and order dated November 6, 1967 denying motion for rehearing, unanimously modified, on the law and in the exercise of discretion, without costs or disbursements, to the following extent, namely, the rehearing is granted, and on such rehearing said judgment is vacated, the motion therefor denied, and the matter remanded for pleadings, on condition that within 15 days after entry of the order hereon defendant file an undertaking in the amount of $3,500 to secure any judgment which plaintiff may recover in this action. In the event such condition is not complied with, said judgment dated November 10, 1967 is unanimously affirmed, with $50 costs and disbursements to plaintiff. Special Term's memorandum on the motion for summary judgment properly emphasized defendant's failure to show that he complained about the allegedly defective condition of the goods plaintiff had sold him. The additional papers submitted on the motion for rehearing to rectify the failure were available and should have been submitted in the first instance. However, they are sufficient to raise a triable issue, and we think it appropriate to dispose of the matter as above provided.
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