SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 7, 1969
WILBUR F. BRESLIN ET AL., RESPONDENTS,
A. J. ARMSTRONG CO., INC., ET AL., APPELLANTS, ET AL., DEFENDANTS
In an action to recover damages for trespass, the appeals are from an order of the Supreme Court, Nassau County, dated December 12, 1968, which denied the motion of defendant Kullman Dining Car Co., Inc., for summary judgment and granted plaintiffs' cross motion for summary judgment against said defendant and defendant A. J. Armstrong Co., Inc.
Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.
In our opinion, the proof adduced on the motion furnished an insufficient basis upon which to summarily impose liability upon Kullman. A question of fact exists as to whether Kullman and Armstrong maintained identical or common interests in the diner after the assignment of the security agreement to Armstrong; or, parenthetically, after Armstrong became the purchaser of the diner at the foreclosure sale. Seemingly, respondents' brief tacitly recognizes a distinction between the respective liabilities of Kullman and Armstrong.
Order modified, on the law, by limiting the granting of plaintiffs' cross motion only as against defendant A. J. Armstrong Co., Inc., so that the order will constitute a denial of said motion as against defendant Kullman Dining Car Co., Inc. As so modified, order affirmed, with $20 costs and disbursements to defendant Kullman Dining Car Co., Inc., against respondents.
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