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Hellyer v. Law Capitol, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Nov 24, 1986
124 A.D.2d 782 (N.Y. App. Div. 1986)

Opinion

November 24, 1986

Appeal from the Supreme Court, Orange County (Slifkin, J.).


Ordered that the appeal by the defendants-appellants is dismissed, as those parties are not aggrieved (see, CPLR 5511); and it is further,

Ordered that on the plaintiff's appeal, the order is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs, payable by the defendants-appellants and the plaintiff appearing separately and filing separate briefs.

On a motion for summary judgment, the movant has the initial burden of coming forward with admissible evidence which makes a prima facie showing of entitlement to judgment as a matter of law (see, GTF Mktg. v Colonial Aluminum Sales, 66 N.Y.2d 965, 967; Zuckerman v City of New York, 49 N.Y.2d 557, 562).

In this case, the respondent submitted affidavits by individuals with personal knowledge of the facts and deposition testimony which made a prima facie showing that it was not at fault for the injury which the plaintiff allegedly received as a result of falling in a hole in the parking lot at the Mid-Valley Mall in Newburgh, New York, since it did not own, operate, maintain, manage or control any portion of that mall or its parking lot (see, Gilbert Props. v City of New York, 33 A.D.2d 175, 178, affd 27 N.Y.2d 594). The burden was thus shifted to the plaintiff to present evidence in admissible form to establish the arguable existence of a triable issue of fact or to tender an acceptable excuse for her failure to do so (see, GTF Mktg. v Colonial Aluminum Sales, supra, at p 968). The affirmations submitted in opposition were "without evidentiary value and thus unavailing" (Zuckerman v City of New York, 49 N.Y.2d 557, 563, supra). The deposition testimony of Robert Thorne, a maintenance supervisor at the Mid-Valley Mall, and former employee of Law Capitol, Inc., failed to establish anything more than a "shadowy semblance" of a triable issue of fact which was insufficient to defeat the motion for summary judgment (Capelin Assoc. v Globe Mfg. Corp., 34 N.Y.2d 338, 341). Since the plaintiff (joined by Law Capitol, Inc. and Newburgh Mid-Valley Associates) failed to establish the arguable existence of any triable issue of fact, and did not tender any excuse for her failure to do so, summary judgment was properly granted to the respondent. Mollen, P.J., Brown, Weinstein and Rubin, JJ., concur.


Summaries of

Hellyer v. Law Capitol, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Nov 24, 1986
124 A.D.2d 782 (N.Y. App. Div. 1986)
Case details for

Hellyer v. Law Capitol, Inc.

Case Details

Full title:ANN HELLYER, Appellant, v. LAW CAPITOL, INC., et al., Appellants, and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 24, 1986

Citations

124 A.D.2d 782 (N.Y. App. Div. 1986)
508 N.Y.S.2d 501

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