—■ Judgment and order insofar as they grant plaintiff’s motion for summary judgment unanimously reversed and motion denied; otherwise order affirmed, *641all without costs. Memorandum: In this malpractice action, the pleadings and moving papers reveal the existence of factual questions to be resolved by a trial of the issues. Among these are whether MVAIC was correct in rejecting plaintiff’s claim in January, 1964, whether there was a proper disclaimer made by the insurance carrier on September 16, 1963 and whether defendant exercised the required degree of professional diligence and skill in his representation of plaintiff’s interests. Furthermore, we point out that it was error for Special Term to decide the present motions based upon a declaratory judgment granted by another Justice in an action in which defendant was neither a party nor a person who was in strict privity with any of the parties to that action. (Israel v. Wood Dolson Co., 1 N Y 2d 116; Mirabella v. De Cecco, 23 A D 2d 531.) (Appeal from judgment and order of Erie Special Term granting summary judgment in action for damages for malpractice.) Present—Marsh, J. P., Witmer, Gabrielli, Cardamone and Henry, JJ.