Opinion
December 1, 1986
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order is affirmed, with costs.
On a motion for summary judgment, the court's function is to determine if a factual issue exists, and the court does not weigh the credibility of the affiants unless untruths are clearly apparent (see, Mortimer v. Lynch, 119 A.D.2d 558; Krupp v. Aetna Life Cas. Co., 103 A.D.2d 252, 262). The burden on the court is not to resolve material issues of fact, but merely to determine whether such issues exist (see, Barr v. County of Albany, 50 N.Y.2d 247; Lonero v. Kewaunee Scientific Equip. Corp., 69 A.D.2d 852).
After reviewing the present record, we conclude that Special Term properly found that triable issues of fact are present, and that the defendant's motion for summary judgment was correctly denied. The defendant's other contention that the plaintiffs participated in the alleged intoxication of the driver does not warrant the granting of summary judgment absent a showing of a much more affirmative role than that of drinking companions (see, Mitchell v. The Shoals, Inc., 19 N.Y.2d 338). Thompson, J.P., Bracken, Rubin and Spatt, JJ., concur.