Irving v. Great Atlantic & Pacific Tea Co.

269 A.D.2d 358, 702 N.Y.S.2d 864, 2000 N.Y. App. Div. LEXIS 1257

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Westchester County (Fredman, J.), entered June 8, 1999, as denied that branch of their motion which was for summary judgment dismissing the plaintiffs’ cause of action to recover damages for negligence.

Ordered that the order is affirmed insofar as appealed from, with costs.

It is well settled that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). “The failure to proffer such evidence warrants a denial of the motion, regardless of the sufficiency of the opposing papers” (Cicolello v Limb, 216 AD2d 434). The affirmations of the appellants’ attorneys and the very brief excerpts of deposition testimony failed to establish a prima facie case entitling them to summary judgment dismissing the plaintiffs’ cause of action to recover damages for negligence (see, Beltran v Metropolitan Life Ins. Co., 259 AD2d 456; Cicolello v Limb, supra; Menzel v Plotnick, 202 AD2d 558). Accordingly, that branch of the motion was properly denied. Mangano, P. J., Bracken, Joy and H. Miller, JJ., concur.