Opinion
March 9, 1987
Appeal from the Supreme Court, Suffolk County (McInerney, J.).
Ordered that the order is affirmed, with costs.
Upon a motion by a defendant for summary judgment, the issue is not whether the plaintiff can establish ultimate liability, but, rather, whether there exists a substantial issue of fact which requires a plenary trial (see, Barr v. County of Albany, 50 N.Y.2d 247; Alvord Swift v. Muller Constr. Co., 46 N.Y.2d 276). Therefore, Special Term properly denied the defendants' motion for summary judgment because the question of whether a contract exists, and, if it does, the nature of its terms, as evidenced by the two letters submitted by the plaintiffs, is in dispute. Niehoff, J.P., Lawrence, Weinstein and Sullivan, JJ., concur.