Stanziale v. City of New York

123 A.D.3d 905, 998 N.Y.S.2d 892

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 2014
• Docket: 2014-00092
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant Empire Beauty School appeals from an order of the Supreme Court, Kings County (Baynes, J.), dated May 8, 2013, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separately briefs, and the motion of the defendant Empire Beauty School for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

The facts of this case are set forth in our decision and order in a companion appeal (see Stanziale v City of New York, 123 AD3d 904 [2014] [decided herewith]). For the reasons set forth in that decision and order, the defendant Empire Beauty School (hereinafter Empire) established its prima facie entitlement to judgment as a matter of law, the defendant Bauer Properties, LLC, declined to oppose Empire’s motion for summary judgment before the Supreme Court, and the evidence submitted by the plaintiffs and the defendant City of New York in opposition to the motion was insufficient to raise a triable issue of fact (see Rodriguez v Themelion Realty Corp., 94 AD3d 733 [2012]).

The remaining contentions of the plaintiffs and the City are either without merit or improperly raised for the first time on appeal.

Accordingly, the Supreme Court should have granted Empire’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Dillon, J.P., Dickerson, Leventhal and Hall, JJ., concur.