
    Popular Construction Inc., Respondent, v Azam H. Bhutta et al., Appellants.
    [616 NYS2d 1007]
   In an action to recover on a check, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Yoswein, J.), dated February 18,1993, as denied his cross motion to dismiss the action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced the instant action by notice of motion for summary judgment in lieu of complaint to recover on a dishonored check drawn by the defendant, alleging that the check was to be the repayment of a loan. In response, the defendant alleged that by virtue of stipulations and releases executed in separate actions, the plaintiff had released the defendant from all claims, including debts. Since there remains an issue of fact as to whether the defendant violated the terms of the stipulations and releases, giving the plaintiff a right to pursue claims against the defendant, the court correctly denied the defendant’s cross motion to dismiss the action pursuant to CPLR 3211 (a) (5). Thompson, J. P., Miller, O’Brien, Santucci and Joy, JJ., concur.  