Powell v. Tarantino Foods, Inc.

234 A.D.2d 989, 652 N.Y.S.2d 188, 1996 N.Y. App. Div. LEXIS 13770

Opinion

—Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erroneously concluded that the entry contained in the police report that the driver had left the keys in the vehicle is insufficient to raise a triable issue of fact whether the keys were left in the ignition of the unattended vehicle (see, Vehicle and Traffic Law § 1210 [a]; Shea v Johnson, 101 AD2d 1018). Issue finding rather than issue determination is the function of the court on a motion for summary judgment. (Appeal from Order of Supreme Court, Erie County, Michalek, J.—Summary Judgment.) Present—Denman, P. J., Green, Pine, Callahan and Boehm, JJ.