Giglio v. Kessler , 54 A.D.2d 556 ( 1976 )

In an action to recover damages for (a) negligent performance of an acquisition audit and (b) breach of contract, (1) plaintiffs appeal from so much of an order of the Supreme Court, Nassau County, entered July 8, 1975, as granted the branch of defendants’ motion which sought dismissal of the first cause of action asserted in the complaint and (2) defendants cross-appeal from the balance of the order, which denied the branch of their motion which sought dismissal of the second cause of action. Order modified by deleting so much thereof as granted the branch of the motion which sought dismissal of the first cause of action, and the said branch of the motion is denied. As so modified, order affirmed, with $50 costs and disbursements to appellants-respondents. There are questions of fact present as to both causes of action which cannot be resolved upon a motion for summary judgment. Thus, the motion to dismiss should have been denied in its entirety. Gulotta, P. J., Hopkins, Latham, Cohalan and Hawkins, JJ., concur.