| Pearson v Dix McBride, LLC |
| 2009 NY Slip Op 05098 [63 AD3d 895] |
| June 16, 2009 |
| Appellate Division, Second Department |
| Starlet Pearson, Respondent, v Dix McBride, LLC,Appellant, et al., Defendant. |
—[*1] Weitz, Kleinick & Weitz, New York, N.Y. (Daniel J. Hansen of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries, the defendant Dix McBride,LLC, appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated June 16,2008, which denied its motion for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is affirmed, with costs.
The drastic remedy of summary judgment should be granted only if there are no triableissues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985])."The function of the court on a motion for summary judgment is not to resolve issues offact or determine matters of credibility, but merely to determine whether such issues exist"(Kolivas v Kirchoff, 14 AD3d 493, 493 [2005]; see Dykeman v Heht, 52AD3d 767, 768 [2008]). Additionally, in determining a motion for summary judgment, evidencemust be viewed in the light most favorable to the nonmovant (see Brown v OutbackSteakhouse, 39 AD3d 450, 451 [2007]). Here, viewing the evidence in the light mostfavorable to the plaintiff, the appellant failed to establish, prima facie, its entitlement tojudgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Underthe circumstances, triable issues of fact exist as to whether the alleged accident actually occurredand, if so, whether it proximately caused the plaintiff to sustain the injuries as alleged. Since theappellant failed to meet its burden as the movant, we need not review the sufficiency of theplaintiff's papers in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851 [1985]). Rivera, J.P., Miller, Balkin and Austin, JJ., concur.