Newton v. Gross

213 A.D.2d 1074, 625 N.Y.S.2d 987

Opinion

—Order unanimously affirmed without costs.

Memorandum: Supreme Court properly denied summary judgment to defendants James J. Jakubiak, D.L. Peterson Trust and BASF Corporation. The conflicting opinions of the experts present issues of credibility to be determined by the trier of fact. It is well settled that on a motion for summary judgment "the burden on the court * * * is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist” (Daliendo v Johnson, 147 AD2d 312, 317). (Appeal from Order of Supreme Court, Erie County, Gorski, J.—Summary Judgment.) Present—Denman, P. J., Lawton, Wesley, Balio and Davis, JJ.