Di Giacomo v. City of New York , 58 A.D.2d 347 ( 1977 )

Markewich, J. (concurring).

I concur in the result arrived at by Justice Lupiano. This case does not lend itself to summary judgment in that there are mixed issues of law and fact. However, my colleague has essayed to decide some of these issues, which may not be done at this juncture. "The court is not authorized to try the issue, but is to determine whether there is an issue to be tried.” (Dwan v Massarene, 199 App Div 872, 879.)