Hunting Supply Corp. v. Febrey

Order unanimously reversed, without costs of this appeal to either party, and motion denied, without costs, and without prejudice to the right of the defendant to move to dismiss for failure to prosecute. Memorandum: There are questions of fact which require determination. Therefore it was error to grant summary judgment. It is significant that the defendant has interposed a counterclaim for an amount in excess of the plaintiff’s claim to which there is no reply. Thus the allegations of the counterclaim are deemed admitted. Where there is a legally sufficient counterclaim for an amount in…