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LUGO v. LJN TOYS

146 A.D.2d 168 (1989)

Yessenia Lugo, an Infant, by Her Mother and Natural Guardian, Mildred Lopez, et al., Respondents, v. Ljn Toys, Ltd., Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

April 13, 1989.

Attorney(s) appearing for the Case

Robert C. Agee of counsel (Fitzgerald & Fitzgerald, attorneys), for respondents.

Joseph M. Buderwitz of counsel (Joseph J. Buderwitz, Jr., with him on the brief; Anthony J. Caputo, P. C., attorney), for appellant.

KUPFERMAN, J. P., and ASCH, JJ., concur with KASSAL, J.; SULLIVAN and CARRO, JJ., dissent in an opinion by SULLIVAN, J.

KASSAL, J.

Under the venerable and oft-reiterated standard by which a motion for summary judgment must be determined, the court's function is one of issue finding rather than issue determination, and if there is any doubt as to the existence of factual issues, this "drastic remedy" should not be granted. (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404...

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