
    In the Matter of Frank Rappa, Respondent, v. State University of New York at Stony Brook, Appellant.
   In a proceeding pursuant to article 78 of the CPLR to compel appellant to restore petitioner to his position of power plant helper in appellant’s employ, the appeal is from a judgment of the Supreme Court, Suffolk County, entered September 15, 1971, which granted the application. Judgment reversed, on the law, without costs, and proceeding remitted to the Special Term for trial of the issues of fact presented by the pleadings and shown by the answering affidavit. Questions of fact were presented which should not have been summarily decided (Matter of Ocean Beach Ferry Corp. v. Incorporated Vil. of Ocean Beach, 275 App. Div. 712). Latham, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.  