Bell v. City of New York

250 A.D.2d 635, 675 N.Y.S.2d 539, 1998 N.Y. App. Div. LEXIS 5527

Opinion

—In a negligence action to recover damages for personal injuries, the defendant VPH Mechanical Construction Corp. appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated May 13, 1997, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557; Matter of Bebirian, 241 AD2d 549). The appellant here failed to establish its entitlement to judgment as a matter of law (see, Broyles v Defelice, 236 AD2d 573). There are factual issues regarding the appellant’s responsibilities for the maintenance of a steel plate and the safeguarding of pedestrian traffic at the work site. There are also factual issues as to whether the plaintiff's accident was caused by the steel plate itself, or by the snow and ice that accumulated on it. Therefore, since triable issues of fact exist, summary judgment was properly denied. Ritter, J. P., Goldstein, McGinity and Luciano, JJ., concur.