| Bonaventura v Galpin |
| 2014 NY Slip Op 05145 [119 AD3d 625] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Carol Anne Bonaventura,Appellant, v Meaghan E. Galpin, Respondent. |
Bornstein & Emanuel, P.C. (Mitchell Dranow, Sea Cliff, N.Y., of counsel), forappellant.
Dodge & Monroy, P.C., Melville, N.Y. (Alejandro Monroy of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Brandveen, J.), dated September 19, 2011,which granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is denied.
Summary judgment is a drastic remedy that deprives a litigant of his or her day incourt, and it "should only be employed when there is no doubt as to the absence of triableissues" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The function of the courton a motion for summary judgment is not to resolve issues of fact or to determine mattersof credibility, but merely to determine whether such issues exist (see Guadalupe v New York CityTr. Auth., 91 AD3d 716 [2012]; Kolivas v Kirchoff, 14 AD3d 493 [2005]). Moreover, indetermining a motion for summary judgment, evidence must be viewed in the light mostfavorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63 AD3d 895[2009]).
Here, in moving for summary judgment, the defendant submitted, inter alia, heraffidavit and the deposition testimony of the plaintiff, which presented conflictingaccounts as to how and why the subject accident occurred. The defendant failed toestablish, prima facie, that she was not negligent in the operation of her vehicle (see generally Gagliardo vOrton, 95 AD3d 1275 [2012]; Steiner v Dincesen, 95 AD3d 877 [2012]; Leung v Bolton, 95 AD3d836 [2012]). In light of the defendant's failure to meet her prima facie burden, weneed not review the sufficiency of the plaintiff's opposition papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Accordingly, the Supreme Court should have denied the defendant's motion forsummary judgment dismissing the complaint. Mastro, J.P., Lott, Sgroi and Cohen, JJ.,concur.