Sovik v. Shearson Lehman/American Express, Inc.

Order unanimously reversed on the law without costs and submission of controversy dismissed. Memorandum: The court erred in deciding a purported action on submitted facts pursuant to CPLR 3222 because such a submission must consist of a statement of all the facts upon which the controversy depends. The court improperly considered affidavits submitted by the parties which raised factual issues (see, Ditmars-31’ St. Dev. Corp. v Punia, 17 AD2d 357, 360). It is impossible to decide the case on the submission alone because it is incomplete. (Appeals from order of Supreme Court, Onondaga County, Mordue, J. — submission of controversy.) Present — Dillon, P. J., Callahan, Denman, Pine and Lawton, JJ.