Levin v. Wilkerson
332 N.Y.S.2d 1010
N.Y. App. Div.1972Check TreatmentOrder, Supreme Court, New York County, entered September 27, 1971, unanimously affirmed, without costs and without disbursements. In affirming denial of plaintiff-appellant’s motion for partial summary judgment we concur in the result only, i.e., that there are factual issues that require a trial. We do not, however, adopt Special Term’s characterization of the pleaded cause as one in negligence. Whether it sounds in negligence or nuisance must depend on development of the facts at trial. Concur — Markewich, J. P., Kupferman, Eager and Capozzoli, JJ.