Stile v. Jen Marine Development, LLC

69 A.D.3d 707, 891 N.Y.2d 667

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 2010
• Status: Published

Opinion

As the Supreme Court reviewed the merits on the plaintiffs’ motion for leave to reargue, the court, in effect, granted reargument and adhered to its original determination. Therefore, the order dated November 25, 2008, made upon reargument, is appealable (see Matter of Mattie M. v Administration for Children’s Servs., 48 AD3d 392, 393 [2008]; McNeil v Dixon, 9 AD3d 481 [2004]).

The defendant established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it did not create and did not have actual or constructive notice of the presence of two raised or popped screws, which allegedly caused plaintiff Joseph Stile to Ml on a new “Y” dock of the defendant’s marina.

The plaintiffs, in response to the defendant’s prima facie showing, failed to raise a triable issue of fact (see Yarborough v City of New York, 28 AD3d 650, 651 [2006], affd 10 NY3d 726 [2008]; Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629 [2009]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Skelos, J.E, Dickerson, Eng and Sgroi, JJ., concur.