J.J. Johnson Restaurant, Inc. v. City of New York Department of Environmental Protection

Appellate Division of the Supreme Court of New York

J.J. Johnson Restaurant, Inc. v. City of New York Department of Environmental Protection

216 A.D.2d 359, 628 N.Y.S.2d 533, 1995 N.Y. App. Div. LEXIS 6177

Appellate Division of the Supreme Court of the State of New York·Decided June 12, 1995·Published

Opinion

—In an action, inter alia, to recover damages for economic injury due to the interruption of business caused by a public construction project, the plaintiff appeals from (1) a decision of the Supreme Court, Queens County (Price, J.), dated July 19, 1993, which found that the defendants were not liable to the plaintiff, and (2) an order of the same court, entered December 10, 1993, which granted the separate motions of the defendants for summary judgment dismissing the complaint.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.

It is well established that once, as here, a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). The plaintiff failed to produce evidence from an expert in road construction that the project in question was unreasonably or unnecessarily delayed (see, Farrell v Rose, 253 NY 73, 80). Therefore, summary judgment was properly granted.

[360] The plaintiff’s remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J. P., Miller, Pizzuto and Friedmann, JJ., concur.

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—In an action, inter alia, to recover damages for economic injury due to the interruption of business caused by a public construction project, the plaintiff appeals from (1) a decision of the Supreme Court, Queens County (Price, J.), dated July 19, 1993, which found that the defendants were not liable to the plaintiff, and (2) an order of the same court, entered December 10, 1993, which granted the separate motions of the defendants for summary judgment dismissing the complaint.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.

It is well established that once, as here, a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). The plaintiff failed to produce evidence from an expert in road construction that the project in question was unreasonably or unnecessarily delayed (see, Farrell v Rose, 253 NY 73, 80). Therefore, summary judgment was properly granted.

[360] The plaintiff’s remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J. P., Miller, Pizzuto and Friedmann, JJ., concur.

J.J. Johnson Restaurant, Inc. v. City of New York Department of Environmental Protection, 216 A.D.2d 359, 628 N.Y.S.2d 533, 1995 N.Y. App. Div. LEXIS 6177 (N.Y. Ct. App. 1995).

Pincite

216 A.D.2d 359 (J.J. Johnson Restaurant, Inc. v. City of New York Department of Environmental Protection) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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