Scott v. Long Island Power Authority

294 A.D.2d 348, 741 N.Y.S.2d 708, 2002 N.Y. App. Div. LEXIS 4864

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 2002
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Franco, J.), entered May 11, 2001, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

It is well established that on a motion for summary judgment the court is not to engage in the weighing of evidence. Rather, the court’s function is to determine whether “by no rational process could the trier of facts find for the nonmoving party” (Jastrzebski v North Shore School Dist., 223 AD2d 677, 678 [internal quotation marks omitted]). It is equally well established that the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Dolitsky v Bay Isle Oil Co., 111 AD2d 366).

In opposition to the defendant’s prima facie showing, the plaintiffs raised questions of fact regarding whether the defendant failed to use reasonable care under the circumstances to prevent the infant plaintiffs injuries (see Scurti v City of New York, 40 NY2d 433; Daniels v Long Is. R.R., 259 AD2d 726). Thus, the Supreme Court-properly denied the defendant’s motion, for summary judgment dismissing the complaint.

The defendant’s contention regarding the expert affidavit submitted by the plaintiffs is without merit. Santucci, J.P., Altman, McGinity and Adams, JJ., concur.