Ordered that the order is affirmed, without costs or disbursements.
Under the unusual and particular facts and circumstances of this case, the Supreme Court properly concluded that there were issues of fact warranting denial of the motion and cross motion for summary judgment ( see generally Alvarez v Prospect Hosp., 68 NY2d 320; see also Da Silva v Musso, 53 NY2d 543, 552; see Bailey Ford v Bailey, 55 AD2d 729).