Unanimously modified, on the law, to reverse so much of the order as awarded summary judgment to defendant-respondent, reinstate the complaint and otherwise affirm, without costs.
The burden upon Special Term was not to resolve material issues of fact appearing on the motion, but only to determine whether any such existed. "Issue-finding, rather than issue-determination, is the key to the procedure." (Esteve v Abad, 271 App Div 725, 727; Sillman v Twentieth...
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