Erkocaj v. Port Authority

18 A.D.3d 423, 795 N.Y.S.2d 891

Opinion

— In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated February 18, 2004, as granted that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment dismissing the first cause of action is denied, and that cause of action is reinstated.

As the parties moving for summary judgment, the defendants had the burden of tendering sufficient evidence to demonstrate the absence of any triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). On the facts of this case, the defendants failed to meet this burden. Since the defendants failed to sustain their burden, it is unnecessary to consider the adequacy of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]). Accordingly, the Supreme Court erred in granting that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action. H. Miller, J.P., Krausman, Crane and Fisher, JJ., concur.