Quintana v. Rupa

31 A.D.3d 524, 818 N.Y.S.2d 282

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants Mohamed Sy-Yed Bailee and Mohammed S. Bailee appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated April 4, 2005, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Mohamed Sy-Yed Bailee.

Ordered that the appeal by the defendant Mohammed S. Bailee is dismissed, without costs or disbursements, as he is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the defendant Mohamed Sy-Yed Bailee, with costs.

In response to the showing by the defendant Mohamed Sy-Yed Bailee of his entitlement to summary judgment dismissing the complaint insofar as asserted against him, the plaintiff demonstrated the existence of a triable issue of fact as to whether that defendant was negligent in failing to control and/or prevent the codefendant David Rupa from recklessly discharging a pellet gun from the attic window of a house owned by his father, Mohammed S. Bailee (see Jaume v Ry Mgt. Co., 2 AD3d 590, 591 [2003]). Accordingly, the Supreme Court correctly denied that branch of the motion the defendant Mohamed Sy-Yed Bailee’s motion which was for summary judgment dismissing the complaint insofar as asserted against him. Florio, J.P., Luciano, Spolzino and Fisher, JJ., concur.