Judice v. DeAngelo

272 A.D.2d 583, 709 N.Y.S.2d 427, 2000 N.Y. App. Div. LEXIS 6018

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated March 4, 1999, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The infant plaintiff Jonathan Judice was injured when he was hit by a vehicle while playing kickball in the street with his friendsfThe plaintiffs brought this action against the owner and operator of the vehicle. The Supreme Court granted the defendants’ motion for summary judgment. We reverse.

It is well established that summary judgment will be granted only if there is no triable issue of fact (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). It is equally well established that issue finding, rather than issue determination, is the key to summary judgment (see, Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 261), and the papers on the motion should be scrutinized carefully in the light most favorable to the party opposing the relief (see, Robinson v Strong Mem. Hosp., 98 AD2d 976). In the instant case, several triable issues of fact exist, including, but not limited to, whether the infant plaintiff was already standing in the middle of the street when the defendants’ vehicle turned onto it, or whether he darted out from behind parked cars into the path of the vehicle, as well as whether the defendant driver failed to observe that which should have been observed (see, Avila v Mellen, 131 AD2d 408). Joy, J. P., Florio, H. Miller and Smith, JJ., concur.