Martinez v. East 16th Associates, LLC

38 A.D.3d 726, 830 N.Y.S.2d 915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 2007
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, (1) from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated May 17, 2005, as granted that branch of the motion of the defendants Robert Kaszovitz and Elaine Cohen which was for summary judgment dismissing the complaint insofar as asserted against them, and (2) from so much of an order of the same court dated September 12, 2005, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated May 17, 2005 is dismissed, as that order was superseded by the order dated September 12, 2005, made upon reargument; and it is further,

Ordered that the order dated September 12, 2005 is reversed insofar as appealed from, on the law, upon reargument, so much of the order dated May 17, 2005 as granted that branch of the motion of the defendants Robert Kaszovitz and Elaine Cohen which was for summary judgment dismissing the complaint insofar as asserted against them is vacated, and that branch of the motion is denied; and it is further,

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

The respondents failed to satisfy their prima facie burden in support of their motion for summary judgment. Accordingly, it is unnecessary to consider whether the plaintiff’s opposition papers were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Crane, J.R, Florio, Fisher and Dickerson, JJ., concur.