Order unani
Page 895
mously modified on the law and as modified affirmed with costs to defendant, in accordance with the following memorandum: In this action to recover a real estate brokerage commission, both parties moved for summary judgment. Supreme Court properly denied defendant’s motion but erred in granting plaintiffs motion. Whether the May 4, 1988 listing agreement between the parties was intended to serve as a "renewal” of their prior agreement, and whether the "effective period” of 60 days under the May 4, 1988 agreement is to be accorded any significance in light of the May 23, 1988 rescission of that agreement, are questions of fact which must be resolved at trial (see, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 293). That part of the order granting summary judgment to plaintiff must, therefore, be reversed and plaintiffs motion must be denied. (Appeal from order of Supreme Court, Monroe County, Boehm, J.—summary judgment.) Present—Dillon, P. J., Callahan, Green, Balio and Lowery, JJ.