Butler v. Seitelman

Peters, J. (dissenting).

It is well settled that in a motion of this kind, "the court’s role is limited to issue finding, not issue resolution” (Kriz v Schum, 75 NY2d 25, 33). Viewing the evidence in the light most favorable to plaintiff, as we must, we find that pursuant to Navigation Law § 40 (1) (a),* defendants owed decedent a duty of care once they permitted him and his crew to use their rowboat. In connection therewith, we find that plaintiffs have sufficiently raised a triable issue of fact as to the availability of flotation devices and whether defendants may have breached such duty if…