Spallholtz v. Hampton C.F. Corp.

294 A.D.2d 424, 741 N.Y.S.2d 916, 2002 N.Y. App. Div. LEXIS 4976

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Mt. Hope Rock Products, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated February 26, 2001, as denied that branch of its motion which was for summary judgment dismissing the third cause of action and all cross claims insofar as asserted against it.

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

In. response to the appellant’s prima facie showing of entitlement to summary judgment as a matter of law, the plaintiffs produced “evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (.Alvarez v Prospect Hosp., 68 NY2d 320, 324). This proof established issues of fact regarding whether the appellant owned the subject machine. In addition, there are issues of fact, among others, as to the nature of the relationship between the appellant and the defendant New Hope Pipe Liners, Inc., and the extent to which the appellant asserted control over the subject machine. Smith, J.P., O’Brien, McGinity and Townes, JJ., concur.