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Powell v. Tarantino Foods, Inc.

234 A.D.2d 989 Court N.Y. App. Div. Decision date 1996-12-30 Docket Appeal No. 1 English

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p. 989
Raymond B. Powell et al., Appellants, v Tarantino Foods, Inc., Doing Business as Tarantino’s, Respondent.
(Appeal No. 1.)
[652 NYS2d 188]

—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,

p. 990
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.