Baliotti v. BLW Management Corp.

In an action, inter alia, for a judgment declaring the interests of the parties in certain real property, the defendant appeals from an order and judgment (one 525 paper) of the Supreme Court, Kings County (Golden, J.), dated November 20, 1987, which, inter alia, denied its motion for summary judgment dismissing the complaint, and granted the plaintiffs’ cross motion for summary judgment in their favor. Ordered, that the order and judgment is modified by deleting the 2d, 3d, 4th, 5th, 6th, and 7th decretal paragraphs thereof and substituting therefor a provision denying the plaintiffs’ cross motion for summary judgment; as so modified the order and judgment is affirmed, with costs to the appellant. Since there was at least some evidence in the record to support the defendant’s position that the parties intended that the 1973 deed convey both parcels, including the deed’s reference to lots 66 and 65, and the parties’ own conduct, the issues should not have been determined as a matter of law. Issue finding rather than issue determination is the focus of a motion for summary judgment (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 405). That relief is inappropriate where, as here, the circumstances are confusing and there is ambiguity in the deed (Pacamar Bearings v British Am. Dev. Corp., 108 AD2d 191, 192). We have considered the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Lawrence, Balletta and Rosenblatt, JJ., concur.