St. Andrews Homeowners Ass'n v. Saint Andrew's Golf Club

Dec 17, 2001
Versions:289 A.D.2d 388
734 N.Y.S.2d 898
2001 N.Y. App. Div. LEXIS 12159

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 plaintiffs 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.

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 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 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.

*389The parties’ remaining contentions are without merit. Altman, J. P., S. Miller, Crane and Prudenti, JJ., concur.