NL Group v. Eccelston Properties, Ltd.

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered on March 11, 1991, which, inter alia, denied plaintiff’s motion for an order granting it summary judgment and dismissing defendant’s counterclaim against plaintiff and its affirmative defenses, unanimously affirmed, without costs, and without prejudice to renewal after discovery.

In answer to plaintiff’s complaint, defendant did not dispute that plaintiff loaned $3,000,000 to the CR Income Partnership, in which defendant was a joint venturer with CR Group, Inc., and that defendant defaulted under a series of guarantees and security agreements it executed in favor of plaintiff. However, defendant asserted a counterclaim and six affirmative defenses against plaintiff and other counterclaim defendants, arguing that the guarantees were unenforceable because, inter alia, they were fraudulently induced as a result of a conspiracy by plaintiff and the other counterclaim defendants to misappropriate defendant’s interests in certain shopping centers. The court properly denied plaintiff’s motion for summary judgment since defendant adequately showed that there exists a cause of action for conspiracy to commit fraud based upon specific facts from which a jury could infer that false representations made to defendant were part of a common scheme or plan between plaintiff and the counterclaim defendants to deprive defendant of its properties (Slavin v Victor, 168 AD2d 399). Concur—Sullivan, J. P., Wallach, Kupferman, Asch and Kassal, JJ.