Kidder, Peabody & Co. v. General Cigar Co. , 430 N.Y.S.2d 1 ( 1980 )

Order, Supreme Court, New York County, entered May 4, 1979, which (1) denied plaintiff-appellant’s motion for summary judgment, (2) granted summary judgment to defendant-respondent on the court’s own motion, and (3) dismissed plaintiff-appellant’s complaint on the merits in its entirety, unanimously modified, on the law, to reverse so much of the order as awarded summary judgment to defendant-respondent, reinstate the complaint and otherwise affirm, without costs. The burden upon Special Term was not to resolve material issues of fact appearing on the motion, but only to determine whether any such existed. "Issue-finding, rather than issue-determination, is the key to the procedure.” (Esteve v Abad, 271 App Div 725, 727; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.) Such factual issues, do exist here. The intentions of the parties are unclear, for example, as to whether the reference to the General Cigar stock in the letter of July 27,1971 was a material term; whether either party’s offer had been accepted as proposed; and as to the-nature of plaintiff’s role, etc. These issues cannot be resolved by summary judgment but require determination by a finder of fact, upon a trial. Concur—Kupferman, J. P., Fein, Lupiano, Bloom and Carro, JJ.