French v. Cliff's Place Ltd.

Appellate Division of the Supreme Court of the State of New York

Dec 1, 1986

Versions:125 A.D.2d 292

508 N.Y.S.2d 577

1986 N.Y. App. Div. LEXIS 62555

— In an action pursuant to General Obligations Law § 11-101, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated July 9, 1985, which, inter alia, denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

On a motion for summary judgment, the court’s function is to determine if a factual issue exists, and the court does not weigh the credibility of the affiants unless untruths are clearly apparent (see, Mortimer v Lynch, 119 AD2d 558; Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 262). The burden on the court is not to resolve material issues of fact, but merely to determine whether such issues exist (see, Barr v County of Albany, 50 NY2d 247; Lonero v Kewaunee Scientific Equip. Corp., 69 AD2d 852).

After reviewing the present record, we conclude that Special Term properly found that triable issues of fact are present, and that the defendant’s motion for summary judgment was correctly denied. The defendant’s other contention that the plaintiffs participated in the alleged intoxication of the driver does not warrant the granting of summary judgment absent a showing of a much more affirmative role than that of drinking companions (see, Mitchell v The Shoals, Inc., 19 NY2d 338). Thompson, J. P., Bracken, Rubin and Spatt, JJ., concur.