| Dorival v DePass |
| 2010 NY Slip Op 04730 [74 AD3d 729] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Jean Dorival, Respondent, v Winston DePass et al.,Defendants, and Savi Gangadeen et al., Appellants. |
—[*1] Steven Alexander Biolsi, Forest Hills, N.Y., for respondent.
In an action, inter alia, to recover damages for negligent misrepresentation, the defendantsSavi Gangadeen and MTS Funding, Inc., appeal, as limited by their brief, from so much of anorder of the Supreme Court, Queens County (Sampson, J.), dated October 26, 2009, as deniedtheir motion for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
Summary judgment is a drastic remedy that is to be granted only where there is no cleartriable issue of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Mosheyev vPilevsky, 283 AD2d 469 [2001]). "On a motion for summary judgment, the function of thecourt is not to determine issues of fact or credibility, but merely to determine the existence ofsuch issues" (Dykeman v Heht, 52AD3d 767, 769 [2008]). "Even the color of a triable issue forecloses the remedy"(Rudnitsky v Robbins, 191 AD2d 488, 489 [1993]). Additionally, in determining amotion for summary judgment, evidence must be viewed in the light most favorable to thenonmovant (see Pearson v DixMcBride, LLC, 63 AD3d 895 [2009]; Mosheyev v Pilevsky, 283 AD2d at 469).
Here, the defendants Savi Gangadeen and MTS Funding, Inc. (hereinafter together thedefendants), made a prima facie showing of entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against them (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]). However, viewing the evidence in the light most favorable to theplaintiff, his submissions in opposition raised a triable issue of fact as to whether the defendantsengaged in certain conduct without the plaintiff's authorization which would render them liableto the plaintiff (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Accordingly, the Supreme Court properly denied the defendants' motion. Rivera, J.P.,Florio, Miller and Austin, JJ., concur.