Zawadzki v. Knight

Callahan, J. P., and Balio, J.

(dissenting). We dissent. In our view, Supreme Court properly denied summary judgment and we should affirm. It is well recognized that summary judgment is a drastic remedy and is rarely granted in negligence actions (Ugarriza v Schmieder, 46 NY2d 471, 474). A defendant seeking summary judgment must present evidence establishing that plaintiff has no cause of action (Hayes v Riccardi, 97 AD2d 954) and that no material and triable issue of fact is presented by the pleadings (Walski v Forma, 54 AD2d 776).

A review of the record clearly shows that there are triable questions of fact that preclude awarding defendant summary judgment. Even assuming that Biozyme has met its initial burden of showing entitlement to summary judgment, plaintiff has met his burden by submitting proof from his medical expert which demonstrates the viability of the theory hypothesized by the plaintiff. We must be ever mindful that in ruling on a summary judgment motion, the court may not assess credibility or weigh conflicting affidavits.

Our role is issue finding, not issue resolution. Summary relief should be denied where there is any doubt, as here, regarding the existence of a factual issue (see, Manufacturers & Traders Trust Co. v Cottrell, 71 AD2d 538; Bracie v Yeshiva Univ., 88 AD2d 823). Since the plaintiff, as the nonmoving *872party, has met his burden through an expert medical authority, summary judgment should be denied (Alvarez v Prospect Hosp., 68 NY2d 320, 324-325). (Appeal from order of Supreme Court, Erie County, Gossel, J. — renewal.) Present — Callahan, J. P., Denman, Pine, Balio and Lawton, JJ.