Mahone v. Washington

17 A.D.3d 1059, 793 N.Y.S.2d 786, 2005 N.Y. App. Div. LEXIS 4676

Opinion

Appeal and cross appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered July 21, 2004 in a personal injury action. The order granted the motion of defendants Anthony J. Pilato (incorrectly sued as Anthony J. Polito) and Genesee Brewing Co. seeking summary judgment dismissing the complaint and cross claims against them and denied plaintiffs’ cross motion for partial summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We note at the outset that Supreme Court erred in determining that the cross motion failed to comply with the requirements of CPLR 3212 (b). Rather, the record establishes that the cross motion incorporated by reference copies of the pleadings previously submitted on the initial motion for summary judgment (see generally Matter of Board of Commrs. of Washington Park of City of Albany, 52 NY 131, 133-134 [1873]). Nevertheless, we conclude that the court properly denied the cross motion because there is a triable issue of fact precluding summary judgment, and we otherwise affirm for reasons stated at Supreme Court. Present—Green, J.P., Scudder, Gorski, Pine and Lawton, JJ.