Anyanwu v. Johnson — 276 A.D.2d 572

Majority

p. 572

Ebere Anyanwu, Plaintiff, v Yvonne M. Johnson et al., Defendants and Third-Party Plaintiffs-Appellants. Janet Philips, Third-Party Defendant-Respondent.

[714 NYS2d 882]

In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Kings County (Mason, J.), dated October 26, 1999, which granted the motion of the third-party defendant for summary judgment dismissing the third-party complaint.

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

The vehicle that the third-party defendant, Janet Philips, was driving was struck in the rear by an automobile driven by the defendant third-party plaintiff Jean Richard Dorvelus. The parties submitted conflicting affidavits as to how the accident occurred.

Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a mate

p. 573

rial and triable issue of fact (see, Rotuba Extruders v Ceppos, 46 NY2d 223 , 231; Phillips v Kantor & Co., 31 NY2d 307 , 311). Issue finding, rather than issue determination constitutes the key to the procedure (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 , 404). Here, the Supreme Court erred by resolving the conflicting affidavits in favor of Philips because an issue of fact exists as to whether Philips contributed to the accident (see, Maschka v Newman, 262 AD2d 615 ). O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.

Cases cited

Rotuba Extruders, Inc. v. Ceppos 46 NY2d 223 N.Y. 1978-12-27 at 231 p. 573
Phillips v. Joseph Kantor & Co. 31 NY2d 307 N.Y. 1972-11-03 at 311 p. 573
Sillman v. Twentieth Century-Fox Film Corp. 3 NY2d 395 N.Y. 1957-07-03 at 404 p. 573