Barbante v. DiPilito

275 A.D.2d 334, 712 N.Y.S.2d 427, 2000 N.Y. App. Div. LEXIS 8705

Opinion

—In an action to recover damages for personal injuries, the defendants Kathy Chiarello and 20th Dairy, Inc., separately appeal, as limited by their respective briefs, from so much of (1) an order of the Supreme Court, Kings County (Garry, J.), dated February 17, 1999, as denied their respective motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and (2) an order of the same court, dated September 30, 1999, as, upon granting renewal and reargument, adhered to the prior determination.

Ordered that the appeals from the order dated February 17, 1999, are dismissed, as that order was superseded by the order dated September 30, 1999, made upon renewal and reargument; and it is further,

Ordered that the order dated September 30,1999, is reversed insofar as appealed from, on the law, upon renewal and reargument, the motions for summary judgment are granted, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed; and it is further,

Ordered that one bill of costs is awarded to the appellants appearing separately and filing separate briefs, payable by the plaintiff-respondent.

The Supreme Court erred in denying the appellants’ respective motions for summary judgment. The appellants each made a prima facie showing of entitlement to judgment.as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). The plaintiff’s opposing papers were premised upon speculative allegations of wrongdoing and failed to raise any triable issues of fact as to the appellants’ liability (see, Dombrowski v County of Nassau, 230 AD2d 705; Babino v City of New York, 234 AD2d 241). Mangano, P. J., O’Brien, Sullivan and H. Miller, JJ., concur.