Opinion
May 30, 2000
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated March 4, 1999, which granted the defendants' motion for summary judgment dismissing the complaint.
Before: Joy, J.P., Florio, H. Miller and Smith, JJ.
Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
The infant plaintiff Jonathan Judice was injured when he was hit by a vehicle while playing kickball in the street with his friends. The plaintiffs brought this action against the owner and operator of the vehicle. The Supreme Court granted the defendants' motion for summary judgment. We reverse.
It is well established that summary judgment will be granted only if there is no triable issue of fact ( see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). It is equally well established that issue finding, rather than issue determination, is the key to summary judgment ( see, Krupp v. Aetna Life Cas. Co., 103 A.D.2d 252, 261), and the papers on the motion should be scrutinized carefully in the light most favorable to the party opposing the relief ( see, Robinson v. Strong Mem. Hosp., 98 A.D.2d 976). In the instant case, several triable issues of fact exist, including, but not limited to, whether the infant plaintiff was already standing in the middle of the street when the defendants' vehicle turned onto it, or whether he darted out from behind parked cars into the path of the vehicle, as well as whether the defendant driver failed to observe that which should have been observed ( see, Avila v. Mellen, 131 A.D.2d 408).