Monte v. White

280 A.D.2d 532, 720 N.Y.S.2d 396, 2001 N.Y. App. Div. LEXIS 1957

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated February 2, 2000, which granted the motion of the defendant Richard Wyland for summary judgment dismissing the complaint insofar as asserted against him, and (2) an order of the same court dated June 7, 2000, which denied their motion, in effect, for reargument.

Ordered that the appeal from the order dated June 7,. 2000, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated February 2, 2000, is reversed, on the law, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant Richard Wyland; and it is further,

Ordered that the appellants are awarded one bill of costs.

The defendant Richard Wyland failed to make a prima facie showing of entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The deposition testimony presented an issue of fact as to whether the defendant exercised reasonable care under all of the circumstances (see, Basso v Miller, 40 NY2d 233, 241). Accordingly, the Supreme Court erred in granting Wyland’s motion for summary judgment dismissing the complaint insofar as asserted against him. Friedmann, J. P., McGinity, Feuerstein and Smith, JJ., concur.