Opinion
July 8, 1963
In an action by a number of grantees of a common grantor of certain real property, to restrain the defendants from violating certain restrictive covenants contained in the deeds, for a declaration of plaintiffs' rights under such covenants, and for other relief, all the defendants (except Tibet Lake Estates, Inc. and the defendants Holden) appeal from so much of an order of the Supreme Court, Westchester County, dated October 15, 1962 and entered October 23, 1962 in Putnam County, as denied their motion for summary judgment dismissing the complaint. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. In our opinion, triable issues of fact exist which cannot be determined on the basis of the conflicting affidavits submitted by the parties. We take note of the undesirable, if not improper, practice disclosed by the record on this appeal. It appears that this action was commenced in October, 1960 and that it first appeared on the Trial Calendar in September, 1961. It was set down for trial at the June 1962 Term, but was not reached. In August, 1962, the motion for summary judgment was made. Thus, the motion was made nearly two years after the inception of the action and less than a month prior to the time it would have been reached for trial. Such tactics have prevented the disposition of the action in the regular order. The remedy of summary judgment should be used to expedite, and not to delay, the disposition of actions ( Jordan v. Levy, 16 A.D.2d 64, 65). Beldock, P.J., Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.