— In a proceeding pursuant to SCPA 2103 to discover property in the possession of the respondent and to compel the respondent to turn such property over to the estate, the petitioner appeals from so much of an order of the Surrogate’s Court, Nassau County (Radigan, S.), dated December 29, 1989, as (1) denied her motion to dismiss the respondent’s first counterclaim, (2) denied her motion for leave to renew a prior motion to dismiss the respondent’s first affirmative defense, and (3) granted the respondent’s cross motion for leave to serve a second amended answer.
Ordered that the order is affirmed insofar as appealed from, with costs payable out of the estate.
We agree with the Surrogate that summary judgment is not warranted, either with respect to the respondent’s first counterclaim, or with respect to the respondent’s first affirmative defense. There are triable issues of fact which preclude such relief. These issues include whether the decedent and the respondent (a law firm of which the decedent was a member) intended that the payment of the proceeds of a certain life insurance policy would buy out the financial interest of the decedent’s estate in the respondent law firm.
We have examined the petitioner-appellant’s remaining contentions, and find them to be without merit. Bracken, J. P., Fiber, Miller and Ritter, JJ., concur.