Levin v. Wilkerson

39 A.D.2d 685 | N.Y. App. Div. | 1972

Order, 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.