DANCIGER v. Mazmiach Yeshuos Realty Corp., et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

Bela DANCIGER, etc., Plaintiff-Respondent, v. BAAL MILCHAMOT REALTY CORP. et al., Defendants-Appellants, Mazmiach Yeshuos Realty Corp., et al., Defendants.

Decided: May 18, 2000

ELLERIN, J.P., WALLACH, LERNER and SAXE, JJ. Elliot P. Hoffman, for Plaintiff-Respondent. Jacob Aschkenasy, for Defendants-Appellants.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered April 19, 1999, which, in this action to set aside the conveyance of two parcels of real property by defendant Baal Milchamot Realty Corp., denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

 Although defendant's claim that this action is barred by the parties' settlement agreement, the motion court correctly determined that there are triable issues of fact as to whether the enforceability of the settlement agreement is dependent on defendants' performance of still unsatisfied conditions.

 Defendants' additional contention that plaintiff, having received the benefits of the parties' settlement, is estopped from denying the settlement's validity and enforceability, is unpreserved for appellate review.   In any event, the contention is unavailing because plaintiff's right to the property he received pursuant to the settlement has been challenged in a pending Federal lawsuit brought by a representative of defendants.