Johnson v. Leach Co.

5 A.D.3d 735, 774 N.Y.S.2d 598, 2004 N.Y. App. Div. LEXIS 3574

Opinion

— In an action, inter alia, to recover damages for personal injuries and wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated December 9, 2002, which granted the motion of the defendant third-party plaintiff, Leach Company, for summary judgment dismissing the complaint and granted the motion of the third-party defendant Mack Trucks, Inc., for summary judgment dismissing the third-party complaint insofar as asserted against it.

Ordered that the appeal from so much of the order as granted the motion of the third-party defendant Mack Trucks, Inc., is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511); and it is further

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

The defendant third-party plaintiff, Leach Company (hereinafter Leach), made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that any finding as to proximate cause would be based on mere speculation (see Mazzone v Lazaroff, 305 AD2d 558, 559 [2003]; Johnson v Sniffen, 265 AD2d 304 [1999]; Scheer v City of New York, 211 AD2d 778 [1995]). In opposition, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). Therefore, the Supreme Court properly granted Leach’s motion for summary judgment dismissing the complaint. Altman, J.P., S. Miller, Krausman and Cozier, JJ., concur.