
    STATE of Florida ex rel. Thomas D. O’MALLEY, Jr., Insurance Commissioner and Treasurer as substituted Ancillary Receiver of North American Guaranty Insurance Company, Appellant, v. Carey C. MATTHEWS and Philip J. Mandina, co-partners, doing business under the firm name of Matthews, Mandina & Lipsky, Appellees.
    No. 71-1309.
    District Court of Appeal of Florida, Third District.
    June 20, 1972.
    Guión T. DeLoach, Miami, for appellant.
    Philip J. Mandina, Miami, for appellees.
    Before PEARSON and CHARLES CARROLL, JJ., and HOWELL, CHARLES COOK, Jr., Associate Judge.
   PER CURIAM.

Proceeding in the name of the State of Florida, the Insurance Commissioner and Treasurer, as ancillary receiver of North American Guaranty Insurance Company, filed an action against the appellees, seeking recovery of a sum of money representing payment of a fee for legal services, alleged to have been a preferential payment by the insurance company after it had been declared insolvent. Based on the pleadings and certain evidence developed in discovery proceedings, both parties moved for summary judgment. The motion of the plaintiff was denied. The motion of the defendants was granted and summary judgment was entered in their favor. The plaintiff appealed. Upon consideration of the pleadings and the evidence, with inferences properly drawn therefrom, which were before the court on the hearing on motion for summary judgment, we conclude that genuine issues of fact were raised thereby, bearing on the question of whether the payment was preferential, which properly could not be resolved by motion for summary judgment. Accordingly, the judgment is reversed, and the cause is remanded for further proceedings.  