Summary
fighting eighth grade boys were not at risk of serious injury so their peril did not invite rescue
Summary of this case from Worster-Sims v. Tropicana Entm't, Inc.Opinion
March 20, 1989
Appeal from the Supreme Court, Suffolk County (Jones, J.).
Ordered that the order and judgment (one paper) entered on April 12, 1988 is reversed insofar as appealed from, on the law, without costs or disbursements, and the motion for summary judgment is denied; and it is further,
Ordered that the order entered March 14, 1988 is affirmed, without costs or disbursements.
It is well established that summary judgment will only be awarded if there are no material and triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). "[I]ssue-finding, as opposed to issue-determination [is] the key" to summary judgment (Krupp v. Aetna Life Cas. Co., 103 A.D.2d 252, 261), and the papers are carefully scrutinized in the light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 A.D.2d 976).
A review of the record herein reveals that there are numerous issues of fact which can only be resolved after trial. However, the plaintiffs made a sufficient showing of their entitlement to a preliminary injunction (see, Albini v. Solork Assocs., 37 A.D.2d 835). Brown, J.P., Eiber, Kooper and Balletta, JJ., concur.