Appeal from an order of the District Court of Nassau County, Second District (William J. O'Brien, J.), entered April 21, 2005. The order, insofar as appealed from as limited by the brief, denied defendants' cross motion to dismiss for failure to state a cause of action or, in the alternative, for summary judgment.

Order affirmed without costs.

Plaintiffs instituted this action in the Small Claims Part of the District Court for breach of a real estate contract for the sale of a one-family residence and a possession agreement. Defendants commenced an action in Supreme Court, Nassau County, for
malicious prosecution and thereafter moved to consolidate the two actions. Without ruling on the motion, the Supreme Court transferred its action to the District Court pursuant to CPLR 325 (d). Subsequent thereto, the small claims matter was stricken
from the calendar. Plaintiffs then moved to restore the small claims action to the calendar, transfer said action to the regular part of the District Court and consolidate the two actions. Defendants cross-moved to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]) or, in the alternative, for summary judgment. The court granted plaintiffs' motion and denied defendants' cross motion. Defendants contend that the court erred as a matter of law in denying their cross motion.

Initially, we note that plaintiffs set forth sufficient factual allegations to support a cognizable claim. Accordingly, the court properly denied that portion of the cross motion seeking dismissal for failure to state a cause of action (CPLR 3211 [a] [7]). In addition, after [*2]reviewing the record, we are in agreement with the lower court that there exist triable issues of fact as to whether defendants satisfied their contractual obligations toward plaintiffs.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 27, 2006