Kanji Tomizawa v. Pearson , 444 N.Y.S.2d 655 ( 1981 )

Order of the Supreme Court, New York County (A. Tyler, J.), entered June 13, 1980, granting plaintiff-appellant’s motion for partial summary judgment, modified, on the law and the facts, to reverse and strike so much of the order as determines the equity interest of the parties, and, otherwise, affirmed, with costs to the plaintiff-appellant. Plaintiff and defendant had each contributed $10,000 to the formation of their company and each held 100 shares with equal voting rights. The order, however, unevenly divided the “equity” interests, giving plaintiff 25% and the defendant 75%, and plaintiff appeals therefrom. Apparently, this determination was made by reason of an additional $20,000 contribution alleged to have been made by the defendant. Whether the $20,000 was a loan to the corporation or for some undefined equity interest is a factual issue requiring trial. The burden on Special Term was not to resolve material issues of fact, but to determine whether such issues existed. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Marshall, Bratter, Greene, Allison & Tucker v Mechner, 53 AD2d 537.) The intentions and actions of the parties are unclear, and therefore, summary judgment must be denied. Concur — Kupferman, J. P., Ross, Silverman, Bloom and Fein, JJ.