Olivera v. Packaging Industries

209 A.D.2d 492, 619 N.Y.S.2d 629, 1994 N.Y. App. Div. LEXIS 11251

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1994
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Huttner, J.), dated January 27, 1992, which granted the motion by the defendant third-party plaintiff for summary judgment, (2) from a resettled order of the same court dated May 8, 1992, which granted the same relief, and (3) as limited by his brief, so much of an order of the same court, dated October 20, 1992, as, upon reargument, adhered to its original determination.

Ordered that the appeal from the order dated January 27, 1992, is dismissed, as that order was superseded by the resettled order dated May 8, 1992; and it is further,

Ordered that the appeal from the resettled order dated May 8, 1992, is dismissed, as that order was superseded by the order dated October 20, 1992, made upon reargument; and it is further,

Ordered that the order dated October 20, 1992, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

To obtain summary judgment the movant must make a "prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Here, we find that the defendant third-party plaintiff, Packaging Industries, made such a showing. Moreover, upon reargument, the plaintiff failed to present any issues of material fact that would have required the court to set aside the original determination. Santucci, J. P., Joy, Krausman and Goldstein, JJ., concur.