Asch and Rubin, JJ., dissent in a memorandum by Rubin, J., as follows: Plaintiff commenced this action for conspiracy to defraud plaintiff and the estate of his deceased wife of a 1/72 ownership interest (representing one unit) in a high-rise apartment building and of the income generated thereby. On or about July 1, 1960, decedent Henrietta Sofsky acquired a two-unit (2/72) ownership interest in the building. The deed *245was promptly recorded. On July 18, 1960, decedent executed and acknowledged a deed transferring one of the units (1/72) in the premises to defendant Rosenberg. This deed was not promptly recorded, and the validity of the conveyance is the subject of these proceedings. Rosenberg also independently acquired two units in November 1960, and this deed was promptly recorded. From 1960 until her death in November 1982, decedent and Rosenberg shared the income from the subject property equally, that is, as though each still owned two units.
Decedent and Rosenberg were co-owners of an unrelated business. Defendant Pomeranz was their attorney, as well as the attorney for the estate of Henrietta Sofsky. Pomeranz recorded the challenged deed in January 1983, subsequent to Henrietta’s death, in accordance with Rosenberg’s instructions. By letter dated January 11, 1983, Pomeranz informed the building’s management that decedent had previously deeded one half of her undivided 2/72 interest to Rosenberg and that management should therefore commence paying Rosenberg in accordance with a three-unit ownership position. In December 1986, the premises were sold for approximately $25,000,000 of which Rosenberg received a three-unit share and the estate a one-unit share.
Plaintiff commenced this action alleging, inter alia, that the challenged deed was never properly delivered to Rosenberg. After joinder of issue, the parties moved and cross-moved for summary judgment. The court initially granted the motion as to defendant Pomeranz but denied the motions as to plaintiff and Rosenberg, finding the existence of issues of fact raised by the failure to record the deed for 23 years, the sharing of payments reflecting an ownership position inconsistent with the conveyance and certain tax documents reflecting a 2/72 ownership interest by decedent in the subject units.
The motion by defendant Pomeranz was granted on the ground that plaintiff failed to set forth sufficient evidence to support a cause of action. On reargument, the court reversed this decision on the ground that the January 11, 1983 letter to the building’s management, written by Pomeranz at the request of Rosenberg but stating that Pomeranz represented the estate, raised an issue with respect to Pomeranz’s participation in the alleged diversion of payments of income from the unit. The court stated that the apparent source of the letter, purportedly the estate, and its content were such that management would not have been expected to question the change in distribution and apparently did not question it. On this *246appeal, Rosenberg and Pomeranz contend that there were no issues of fact to warrant denial of summary judgment dismissing the complaint. I disagree.
In support of his position, Rosenberg relies on the presumption of delivery of the deed from its recordation (In re Brock’s Will, 208 NYS2d 772, 776). However, the presumption is compromised by "proof of attendant facts and subsequent circumstances, such as the possession and control of the property by the grantor, the declarations of the supposed grantee which are inconsistent with the transfer of the title, which, with the acts and conduct of the parties in relation to the property, are all circumstances to be considered in determining whether there has been a delivery and acceptance of the deed” (Ten Eyck v Whitbeck, 156 NY 341, 352). Late recording of the conveyance is prominent among these considerations (Ten Eyck v Whitbeck, supra, at 351). The distribution of payments inconsistent with the ownership of the unit advanced by Rosenberg is another. The confidential relation of Pomeranz to the parties, his apparent conflict of interest and the absence of any witness who can contradict the version of events alleged by defendants present credibility questions requiring resolution by a trier of fact (Ten Eyck v Whitbeck, 156 NY 341, 353, supra; see also, Piwowarski v Cornwell, 273 NY 226, 229).
Summary judgment is a drastic remedy (Rotuba Extruders v Ceppos, 46 NY2d 223), and the function of the court is issue finding not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Wiener v Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). The credibility of the parties is not a proper consideration for the court (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338), and statements made by the party opposing the motion must be accepted as true (Patrolmen’s Benevolent Assn. v City of New York, 27 NY2d 410, 415; Cohn v Lionel Corp., 21 NY2d 559). The pleadings raise triable issues of fact, and summary judgment was properly denied (Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169; Di Sabato v Soffes, 9 AD2d 297).