Opinion
December 12, 1968
Order, entered August 5, 1968, unanimously affirmed, without costs and disbursements. Although there exists considerable doubt as to the merits of plaintiff's cause of action and as to the existence of the alleged understanding which would avoid the effect of the general release delivered in escrow, we conclude that the record does not permit as a matter of law dismissal of the action. It is settled that "summary judgment should not be granted where there is any doubt as to the existence `of [factual] issues'." ( Millerton Agway Coop. v. Briarcliff Farms, 17 N.Y.2d 57, 61; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404.)
Concur — Stevens, J.P., Eager, Capozzoli, McGivern and Bastow, JJ.