Gecaj v. DiFiglio

Appellate Division of the Supreme Court of New York

Gecaj v. DiFiglio

303 A.D.2d 548, 756 N.Y.S.2d 463

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 17, 2003

StatusPublished

Cited by3 cases

This text of 303 A.D.2d 548 (Gecaj v. DiFiglio) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gecaj v. DiFiglio, 303 A.D.2d 548, 756 N.Y.S.2d 463 (N.Y. Ct. App. 2003).

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Opinion

—In an action to recover damages for [549]*549personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered April 26, 2002, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. The defendant failed to sustain his initial burden of demonstrating] the absence of a triable issue of fact as to whether he exercised due care to avoid the subject accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Charles v Ball, 291 AD2d 367 [2002]; Ruocco v Mulhall, 281 AD2d 406 [2001]; Kiernan v Hendrick, 116 AD2d 779, 781-782 [1986]). The defendant’s failure to make a prima facie showing of his entitlement to judgment as a matter of law required the denial of his motion, regardless of the sufficiency of the plaintiffs’ opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Goldstein, J.P., Adams, Townes and Crane, JJ., concur.

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—In an action to recover damages for [549]*549personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered April 26, 2002, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. The defendant failed to sustain his initial burden of demonstrating] the absence of a triable issue of fact as to whether he exercised due care to avoid the subject accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Charles v Ball, 291 AD2d 367 [2002]; Ruocco v Mulhall, 281 AD2d 406 [2001]; Kiernan v Hendrick, 116 AD2d 779, 781-782 [1986]). The defendant’s failure to make a prima facie showing of his entitlement to judgment as a matter of law required the denial of his motion, regardless of the sufficiency of the plaintiffs’ opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Goldstein, J.P., Adams, Townes and Crane, JJ., concur.

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Bluebook (online)

303 A.D.2d 548, 756 N.Y.S.2d 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gecaj-v-difiglio-nyappdiv-2003.

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