| Double Fortune Prop. Invs. Corp. v Gordon |
| 2008 NY Slip Op 07966 [55 AD3d 406] |
| October 21, 2008 |
| Appellate Division, First Department |
| Double Fortune Property Investors Corp., on Behalf of 150Lafayette Street Property Investment Co., LP, Respondent, v Michael R. Gordon,Appellant. |
—[*1] Raymond W.M. Chin, New York (Joseph Milano of counsel), for respondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 10, 2008,which denied defendant escrow agent's motion to strike the complaint and granted plaintiff'scross motion for summary judgment on its claim for return of the escrowed funds, unanimouslyaffirmed, with costs.
The escrow agreement contained no definite term and therefore was terminable at will(Interweb, Inc. v iPayment, Inc., 12 AD3d 164 [2004], lv dismissed 4 NY3d 776[2005]). Defendant failed to identify any facts in plaintiff's exclusive possession that might haveprecluded summary judgment pursuant to CPLR 3212 (f). Given that plaintiff merely terminatedan at-will contract, defendant failed to raise an issue of fact as to his affirmative defenses ofestoppel, waiver, laches, or unclean hands (see id.). Defendant's contentions concerninghis defense of failure to state a cause of action are unavailing.
Plaintiff having responded to defendant's discovery requests, the proper course for defendant,rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compelfurther discovery pursuant to CPLR 3124 (see Barber v Ford Motor Co., 250 AD2d 552[1998]). Concur—Tom, J.P., Gonzalez, Williams, Moskowitz and Freedman, JJ.