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ALICE KNEPKA AND JOHN KNEPKA, PLAINTIFFS-APPELLANTS, v. TIMOTHY TALLMAN, TIMOTHY TALLMAN, D/B/A TALLMAN SALES AND SERVICE, AND TALLMAN SALES AND SERVICE, DEFENDANTS-RESPONDENTS.

Order unanimously reversed on the law with costs, motion denied and complaint reinstated.

Memorandum:

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint ( see, Mickelson v. Babcock, 190 A.D.2d 1037; see generally, Black v. Chittenden, 69 N.Y.2d 665, 669; Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present credibility issues for trial ( see, Schoen v. Rochester Gas Elec., 242 A.D.2d 928; Mickelson v. Babcock, supra).

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KNEPKA v. TALLMAN
(Dec 27, 2000)