Kubuki Barber Shop, Inc. v. Monge , 31 A.D.2d 923 ( 1969 )

Order of July 17, 1968, granting summary judgment to plaintiff on the first, third and fourth causes of action and dismissing defendant’s counterclaim and third-party complaint unanimously reversed, on the law, with $50 costs and disbursements, and plaintiff’s motions for summary judgment and to dismiss the counterclaim and third-party complaint are denied. The same order also denied defendant’s cross motion to dismiss the complaint, but that aspect has not been cross-appealed. The record discloses a most curious lease made by the parties, whereunder plaintiff is constrained, at one and the same time, to operate the premises as a barber shop only, and also not to violate the certificate of occupancy, which does not include operation of a barber shop as a permissible use of the premises. Among others, there is one question of fact as to whether plaintiff’s representatives perpetrated a fraud on defendant by misdescription of the proposed use and another issue as to whether defendant concealed from plaintiff the restrictions imposed by zoning regulations. Such issues must be resolved at a trial. Concur— Eager, J. P., McGivern, Markewich and McNally, JJ.