PAULIN v. NEEDHAM (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated November 17, 2004, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

 It is fundamental that “summary judgment should only be granted where there are no material and triable issues of fact” (Stretch v. Tedesco, 263 A.D.2d 538, 693 N.Y.S.2d 203;  see Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853) and that “issue finding, as opposed to issue determination, is the key to summary judgment” (Stretch v. Tedesco, supra at 539, 693 N.Y.S.2d 203;  see Judice v. DeAngelo, 272 A.D.2d 583, 709 N.Y.S.2d 427).

 The Supreme Court erred in granting the motion since the defendants failed to meet their initial burden of demonstrating the absence of a triable issue of fact as to whether the defendant driver exercised due care to avoid the subject accident under the circumstances that existed at the time the accident occurred (see CPLR 3212[b];  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Gecaj v. DiFiglio, 303 A.D.2d 548, 756 N.Y.S.2d 463;  cf. Vehicle and Traffic Law § 1146;  Kiernan v. Hendrick, 116 A.D.2d 779, 497 N.Y.S.2d 171).   In light of the defendants' failure to make a prima facie showing of entitlement to judgment as a matter of law, the motion should have been denied regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., supra;  Gecaj v. DiFiglio, supra ).