Opinion
April 24, 1972
Motion by respondent to resettle this court's order of February 24, 1972 [ 38 A.D.2d 316] so as to add thereto (1) a statement that the findings of fact below are affirmed or (2) an alternative statement. Motion denied, without costs. In our opinion, no findings of fact were made at Special Term, which merely held that "plaintiff has clearly established a strong likelihood of his ultimate success on his claim that a fetus is a human being." At another place, Special Term wrote: "if plaintiff can in fact prove, upon trial, that a fetus of less than twenty-four weeks' gestation is a living human being, there is indeed much more than a 'strong likelihood of his ultimate success'." Since the medical facts alleged in the moving papers at Special Term were largely undisputed and the parties, on the argument of the appeal, agreed that there were no factual issues requiring a trial, we treated those allegations of medical fact as true and resolved the legal issues presented. CPLR 5712 (subd. [c], par. 1) requires that, if our reversal be on the law alone, our order shall also state whether the findings of fact below have been affirmed. It is implicit in that requirement, however, that findings of fact were made below. Not every reversal on the law involves an affirmance, modification or reversal of findings of fact. Rabin, P.J., Latham, Shapiro, Gulotta and Christ, JJ., concur.