Knepka v. Tallman

Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint (see, Mickelson v Babcock, 190 AD2d 1037 ; see generally, Black v Chittenden, 69 NY2d 665 , 669; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338 , 341). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present credibility issues for trial (see, Schoen v Rochester Gas & Elec., 242 AD2d 928 ; Mickelson v Babcock, supra). (Appeal from Order of Supreme Court, Oneida County, Grow, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Pine, Kehoe and Balio, JJ.