Skelly v. Carma Realty Ltd.

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])…