Citation Numbers: 50 A.D.2d 996
Filed Date: 12/18/1975
Status: Precedential
Modified Date: 1/12/2022
— Appeal from an order of the Supreme Court at Special Term, entered June 6, 1975 in Schenectady County, which granted plaintiff’s motion to strike appellant’s amended answer and for summary judgment. This is an action to foreclose a mortgage on certain property owned by appellant in Schenectady County, and in its answer appellant interposed several affirmative defenses as well as a counterclaim which demanded $300,000 in compensatory damages and $2,200,000 in punitive damages. As noted above, plaintiff moved to strike appellant’s amended answer and for summary judgment, and Special Term granted this motion in all respects. On this appeal, appellant contends that plaintiff’s moving papers were insufficient to sustain the striking of the counterclaim, that summary judgment should not have been granted on plaintiff’s claim because the counterclaim demanded an amount in excess of that demanded in the main claim and raised factual issues interwoven with the complaint, and that summary judgment should likewise not have been granted because the affirmative defenses interposed raised factual issues. We cannot agree with these contentions, however, and, mindful that in ruling on a motion for summary judgment we must accept as true all the evidence opposing the motion (Weiss v Garfield, 21 AD2d 156), and that summary judgment is a drastic remedy to be granted only where there are clearly no factual issues (Millerton Agway Coop, v Briarcliff Farms, 17 NY2d 57), we must nonetheless, affirm the order of Special Term. The underlying controversy herein arose out of a transfer of the stock of the appellant corporation in December, 1972 whereby the present shareholders purchased the corporation from its former parent company, Prel Corporation. According to appellant, this transfer was conditioned upon plaintiff