Perez v. City of New York

Appellate Division of the Supreme Court of New York

Perez v. City of New York

25 A.D.3d 772, 807 N.Y.S.2d 577

Appellate Division of the Supreme Court of the State of New York·Decided January 31, 2006·Published

Opinion

In two related actions to recover damages for personal injuries, EK.L. Corp., doing business as Chung Kiwa Restaurant, the defendant in action No. 2, appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Queens County (O’Donoghue, J.), entered March 9, 2005, which, inter alia, denied its cross motion for summary judgment dismissing the complaint in action No. 2.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, the Supreme Court properly denied its cross motion for summary judgment dismissing the complaint in action No. 2. The defendant established, prima facie, its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). However, in opposition, the plaintiff submitted evidence raising triable issues of fact as to whether the defendant was negligent, and, if so, whether such negligence was a proximate cause of the accident in question (see Prince v DiBenedetto, 189 AD2d 757, 759 [1993]).

The appellant’s remaining contention is without merit. Goldstein, J.P., Mastro, Spolzino and Lunn, JJ., concur.

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In two related actions to recover damages for personal injuries, EK.L. Corp., doing business as Chung Kiwa Restaurant, the defendant in action No. 2, appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Queens County (O’Donoghue, J.), entered March 9, 2005, which, inter alia, denied its cross motion for summary judgment dismissing the complaint in action No. 2.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, the Supreme Court properly denied its cross motion for summary judgment dismissing the complaint in action No. 2. The defendant established, prima facie, its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). However, in opposition, the plaintiff submitted evidence raising triable issues of fact as to whether the defendant was negligent, and, if so, whether such negligence was a proximate cause of the accident in question (see Prince v DiBenedetto, 189 AD2d 757, 759 [1993]).

The appellant’s remaining contention is without merit. Goldstein, J.P., Mastro, Spolzino and Lunn, JJ., concur.

Perez v. City of New York, 25 A.D.3d 772, 807 N.Y.S.2d 577 (N.Y. Ct. App. 2006).

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Opinion

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