Raymond v. Tarantino Foods, Inc.

Full title: RAYMOND B. POWELL et al., Appellants, v. TARANTINO FOODS, INC., Doing…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 30, 1996

234 A.D.2d 989 (N.Y. App. Div. 1996)

652 N.Y.S.2d 188

Opinion

December 30, 1996.

Order unanimously reversed on the law with costs, motion denied and complaint reinstated.

Present — Denman, P.J., Green, Pine, Callahan and Boehm, JJ.

Memorandum:

Supreme Court erroneously concluded that the entry contained in the police report tha t 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, 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.)