Opinion
June 10, 1976
Order, Supreme Court, New York County, entered February 4, 1976, granting reargument and on such reargument referring issues to a Special Referee, is reversed, on the law, and plaintiff's motion for summary judgment is denied, without costs and without disbursements. The presence of issues of fact which led the Special Term to direct a reference requires denial of the motion for summary judgment. Summary judgment is not a provision for an abbreviated trial of material issues of fact but merely a procedure for determining whether there are material issues of fact. Once it is determined that there are such issues of fact, summary judgment must be denied at least as to those material issues of fact. The provision of CPLR 3212 (subd [c]) permitting the court to order an immediate trial of issues of fact raised by a motion for summary judgment "before a referee, before the court, or before the court and a jury, whichever may be proper" does not vest discretion in the court to require the trial of such issues of fact before any type of fact finder other than would be required were there no motion for summary judgment. The quoted provision is merely a provision for early trial of issues of fact, analagous to CPLR 603. This being an action at law in which a jury trial has been demanded, material issues of fact cannot be referred to a referee for trial. (Cf. CPLR 2218.) In the view we have taken, it thus becomes unnecessary to consider whether the instrument sued upon is an instrument for payment of money only within CPLR 3213.
Concur — Markewich, J.P., Lupiano, Silverman and Lane, JJ.; Kupferman, J., would affirm on the opinion of Helman, J., at Special Term.