Palmieri v. Marx

7 A.D.3d 688, 776 N.Y.S.2d 812

Opinion

In an action to recover damages for nuisance and breach of a stipulation of settlement, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated February 6, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court erred in determining that the defendant, who was an uncompensated director of a beach club, was entitled to the protection of Not-For-Profit Corporation Law § 720-a (see Bernbach v Bonnie Briar Country Club, 144 AD2d 610 [1988]). Nevertheless, the defendant met her burden of establishing her entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]) by demonstrating that she did not participate in the creation of the alleged nuisance (see Tucker v Meola, 170 AD2d 667 [1991]; Widlitz v Scher, 148 AD2d 530 [1989]; Bellinzoni v Seland, 128 AD2d 580 [1987]), and did not sign the stipulation of settlement (see Salzman Sign Co. v Beck, 10 NY2d 63 [1961]). In response, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Santucci, J.P., Schmidt, Townes and Mastro, JJ., concur.