Is there a triable issue in this application?

Plaintiff’s counsel agrees that the primary determination in this application is whether or not there is a triable issue. He refers to paragraph 22 in Dwyer v. Fox where the court sets out one of its four reservations to the general principles stated at paragraph 16: The third reservation is that, where the decision to admit is conscious and deliberate and without reasonable excuse, that decision must count for something. A judge should not lightly say that an issue is triable when counsel came to a different conclusion. Indeed, without more, we think that a judge may safely infer that such a decision decides the triability issue.