November 16, 1990
Appeal from the Supreme Court, Erie County, Rath, J.
Present — Doerr, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs and motion denied. Memorandum: Defendant contends that the trial court erred in granting plaintiff summary judgment. We agree. Accepting, as we must for the purposes of this motion, the nonmoving party's evidence as true (see, Hourigan v. McGarry, 106 A.D.2d 845), summary judgment must be denied because there is at least arguably an issue of fact regarding the existence of the partnership (see, Missan v. Schoenfeld, 95 A.D.2d 198).