(dissenting). Special Term was correct in not awarding summary judgment in the sum of $1,090,693.03, based upon an asserted acceleration of payments arising out of the default on a first installment of a promissory note which in turn embraced other complex and not unambiguous agreements. The real intent of the parties respecting the availability of the Pierce Ranch property as recourse for payment, is not clear from the documents; and whether there rested a duty upon the *60plaintiff to file a claim with the receiver of the Buckeye Incubator Company raises a question which is not on this record determinable. Significantly lacking is an affidavit of anyone with personal knowledge of the 1964 negotiations, and tending to contradict the defendant’s position. Noteworthy also is that almost a year has passed since the entry of the challenged order and the perfection of the appeal therefrom, a factor which greatly mitigates claimed prejudice to plaintiff from denial of summary judgment by Special Term. In any event, in my judgment the record fails to indicate that plaintiff’s claim is one ripe for summary judgment. As frequently stated, “ summary judgment is a drastic remedy and should not be granted where there is any doubt as to a triable issue ” (Moscowitz v. Garlock, 23 AD 2d 943).
McNally- and Steuer, JJ., concur with Markewich, J.; McGivern, J., dissents in opinion in which Capozzoli, J. P., concurs.
Order entered October 8, 1968, reversed, on the law, with $50 costs and disbursements to the appellant, and the motion for summary judgment granted on both causes of action, the second cause being, however, severed and remitted to Trial Term for assessment thereunder. The Clerk is directed to enter judgment accordingly.