Blittner v. Filroben Associates ( 1992 )

— Order, Supreme Court, New York County (David B. Saxe, J.), entered September 10, 1991, which denied plaintiffs’ motion for summary judgment dismissing defendant-respondent’s counterclaims, or, in the alternative, for vacatur of the stay of entry of an interlocutory judgment of foreclosure and sale, unanimously modified, on the law, the facts and in the exercise of discretion, to reverse that portion of the order which denied plaintiffs’ motion for vacatur of the stay, the stay vacated, the counterclaims severed, and the proceeds from any sale ordered held in escrow by the attorneys for plaintiffs-appellants pending final adjudication of the defendant’s counterclaims, and the order is otherwise affirmed, without costs.

Both of defendant’s counterclaims raise material issues of fact that cannot be resolved on a motion for summary judgment (see, Manufacturers & Traders Trust Co. v Cottrell, 71 AD2d 538). In particular, we note that, concerning the fraudulent misrepresentation claim, the "merger” and "as is” clauses in the contract do not preclude judicial inquiry into the specific claims of fraud as here alleged (see, Caramante v Barton, 114 AD2d 680).

However, we agree with plaintiffs that, at this point in the action, the motion to vacate the stay of entry of the 1987 order of foreclosure and sale should be granted. A motion to vacate a stay on the grounds that it is no longer serving the ends of justice may be made at any time while the stay remains in effect (see, Haenel v November & November, 144 AD2d 298). In this case, plaintiffs have shown that further delay in foreclosure and sale could result in a significant reduction in the value of the leasehold. Defendant, on the other hand, seeks only damages on its counterclaims and has shown no reason why it will be prejudiced by prompt sale. Under such circumstances, we find that the motion to vacate the stay of foreclosure and sale should be granted. Concur— Murphy, P. J., Carro, Ellerin, Asch and Smith, JJ.