
    Peter Dalton, as Parent and Natural Guardian of Brian M. Dalton, an Infant, Respondent, v Educational Testing Service, Appellant.
    [614 NYS2d 742]
   In a proceeding pursuant to CPLR article 78 to prohibit the Educational Testing Service from cancelling Brian M. Dalton’s test scores on the November 2, 1991, Scholastic Aptitude Test, which was converted into an action at law, Educational Testing Service appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Friedmann, J.), dated March 9, 1992, as, after converting the proceeding to an action at law, denied its cross motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

We find that summary judgment was properly denied to the appellant, as issues of fact were raised concerning its good faith consideration of Brian M. Dalton’s explanations for the rise in his Scholastic Aptitude Test scores (see, Dalton v Educational Testing Serv., 206 AD2d 402 [decided herewith]). Thompson, J. P., Balletta, O’Brien and Florio, JJ., concur.  