Opinion
2000-10072
Argued November 26, 2001.
December 17, 2001.
In an action pursuant to RPAPL article 15, the defendant Saint Andrew's Golf Club appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), dated September 13, 2000, as denied its motion for summary judgment dismissing the complaint and granted those branches of the plaintiff's motion which were for summary judgment dismissing its fourth and twelfth affirmative defenses based on laches and estoppel, respectively, and the plaintiff cross-appeals from so much of the same order as denied those branches of its cross motion which were for summary judgment on the complaint and to dismiss the remaining affirmative defenses.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, White Plains, N Y (Steven M. Silverberg and Katherine Zalantis of counsel), and Gentile, Brotman, Maltz Benjamin, LLP, New York, N.Y. (Michael A. Gentile of counsel), for appellant-respondent (one brief filed).
DelBello Donnellan Weingarten Tartaglia Wise Wiederkehr, LLP, White Plains, N.Y. (Lee S. Wiederkehr and William E. Dumke of counsel), for respondent-appellant.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, STEPHEN G. CRANE, A. GAIL PRUDENTI, JJ.
ORDERED that the order is affirmed, without costs or disbursements.
To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented and that the movant is entitled to judgment in his or her favor as a matter of law. This drastic remedy should not be granted where there is any doubt as to the existence of such issues or where the issue is arguable. Issue-finding, rather than issue-determination, is the key to the procedure (see, CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Sillman v. Twenthieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). The Supreme Court properly found that this case presents a triable issue of fact which precludes the granting of summary judgment to either party.
The parties' remaining contentions are without merit.
ALTMAN, J.P., S. MILLER, CRANE and PRUDENTI, JJ., concur.