Abt v. Lawrence ( 1991 )

Motion for modification of the decision and order of this court (167 AD2d 234) entered on November 15, 1990 granted to extent of recalling and vacating that decision and order and substituting a new decision and order therefor, as follows:

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered on February 28, 1990, which denied plaintiff’s motion pursuant to CPLR 2221 for renewal of a prior motion for partial summary judgment, unanimously affirmed, without costs.

In this dispute over the compensations allegedly due to plaintiff for his services in connection with a real estate transaction, the IAS court previously determined that there were issues of fact as to the intent of the parties precluding a grant of plaintiff’s original motion for partial summary judgment. This court affirmed (154 AD2d 958). Renewal of the motion for summary judgment was properly denied. Plaintiff did not present any new material facts (see, Bayridge Air Rights v Blitman Constr. Corp., 160 AD2d 589, 590). In any event, plaintiff has at most raised additional issues of fact which warrant a trial (see, James v Nestor, 120 AD2d 442, 443). The decision and order of this court entered on November 15, 1990 is recalled and vacated. Concur—Kupferman, J. P., Carro, Ellerin, Wallach and Smith, JJ.