Burke v. Wuster

— In an action for specific performance of a contract to convey title to property, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (McCarthy, J.), entered September 4, 1986, as denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

Whether the defendant’s motion be viewed as one pursuant to CPLR 3211 or 3212, dismissal of the complaint was properly denied. The propriety of the defendant’s rescission of the contract raises issues which should be determined at trial. Mangano, J. P., Brown, Lawrence, Weinstein and Kunzeman, JJ., concur.