Taino v. Bernard

13 A.D.3d 358, 785 N.Y.S.2d 342, 2004 N.Y. App. Div. LEXIS 14836

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries and wrongful death, the defendant City of Yonkers appeals, as limited by its brief, from so much of an order of the Supreme Court, West-Chester County (LaCava, J.), dated September 3, 2003, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

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

The appellant established its prima facie entitlement to judgment as a matter of law by showing that no special relationship existed between the plaintiffs decedent and the defendant City of Yonkers Police Department (see Cuffy v City of New York, 69 NY2d 255 [1987]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). However, in opposition, the plaintiff raised a triable issue of fact. Accordingly, the appellant’s motion for summary judgment was properly denied.

We note that although a brief was submitted on behalf of the defendant City of Yonkers Police Department, no notice of appeal was filed on its behalf, and therefor its arguments have not been considered. Florio, J.P., H. Miller, S. Miller and Spolzino, JJ., concur.