Opinion

Di Giacomo v. City of New York

58 A.D.2d 347
397 N.Y.S.2d 632
1977 N.Y. App. Div. LEXIS 12413

Court: Appellate Division of the Supreme Court of the State of New York
Filed: Jul 14, 1977
Status: Published
Author: Markewich
On the bench: Capozzoli, Lupiano, Markewich, Silverman
Cited by: 9 cases
Authority: More cited than 1.0%

Reversed by Di Giacomo v. City of New York, 46 N.Y.2d 894 (1979)

The opinion

Markewich, J. (concurring).

I concur in the result arrived at by Justice Lupiano. This case does not lend itself to summary judgment in that there are mixed issues of law and fact. However, my colleague has essayed to decide some of these issues, which may not be done at this juncture. "The court is not authorized to try the issue, but is to determine whether there is an issue to be tried.” (Dwan v Massarene, 199 App Div 872, 879 .)

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