Skelly v. Carma Realty Ltd.

Appellate Division of the Supreme Court of New York

Skelly v. Carma Realty Ltd.

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 13, 1980

StatusPublished

This text of 78 A.D.2d 1005 (Skelly v. Carma Realty Ltd.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Skelly v. Carma Realty Ltd., 78 A.D.2d 1005, 433 N.Y.S.2d 905, 1980 N.Y. App. Div. LEXIS 13782 (N.Y. Ct. App. 1980).

Pincite

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 [1006]*1006order of Monroe Supreme Court — recover personal property.) Present — Cardamone, J. P., Simons, Hancock, Jr., Callahan and Moule, JJ.

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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 [1006]*1006order of Monroe Supreme Court — recover personal property.) Present — Cardamone, J. P., Simons, Hancock, Jr., Callahan and Moule, JJ.

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Bluebook (online)

78 A.D.2d 1005, 433 N.Y.S.2d 905, 1980 N.Y. App. Div. LEXIS 13782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skelly-v-carma-realty-ltd-nyappdiv-1980.

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