Skelly v. Carma Realty Ltd.

78 A.D.2d 1005, 433 N.Y.S.2d 905, 1980 N.Y. App. Div. LEXIS 13782

Opinion

Order unanimously reversed, without costs, and summary judgment denied. Memorandum: Our review of the record reveals that issues of fact were determined by the trial court solely upon conflicting affidavits and exhibits submitted in response to a motion for summary judgment. Notwithstanding the understandable efforts of the court to resolve the differences between these parties without a trial, it was improper for Special Term to decide disputed factual issues upon the pleadings and affidavits, treating plaintiff’s claim as a request for summary judgment pursuant to CPLR 3212 (subd [b]) (Matter of Resco Equip. & Supply Corp. v City Council, City of Watertown, 34 AD2d 1088). Since summary judgment deprives the litigants of their day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Coop, v Briarcliff Farms, 17 NY2d 57). Where there is any significant doubt as to a material triable issue of fact where the material issue of fact is arguable, summary judgment must be denied (St. Paul Ind. Park v New York State Urban Dev. Corp., 63 AD2d 822; Strychalski v Mekus, 54 AD2d 1068). (Appeal from order of Monroe Supreme Court — recover personal property.) Present — Cardamone, J. P., Simons, Hancock, Jr., Callahan and Moule, JJ.