Opinion
2017–04064 Index No. 25218/13
03-06-2019
Virginia KURRE, Respondent, v. ACJ REALTY, LLC, Defendant, Joseph M. Capo, M.D., P.C., Appellant.
McCarthy & Associates, Melville, N.Y. (Michael D. Kern of counsel), for appellant. Mary Ann Candelario, Garden City, NY, for respondent.
McCarthy & Associates, Melville, N.Y. (Michael D. Kern of counsel), for appellant.
Mary Ann Candelario, Garden City, NY, for respondent.
ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the defendant Joseph M. Capo, M.D., P.C., appeals from an order of the Supreme Court, Suffolk County (Peter H. Mayer, J.), dated December 7, 2016. The order, insofar as appealed from, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff allegedly was injured when she tripped and fell while in a facility owned by the defendant ACJ Realty, LLC, and leased by the defendant Joseph M. Capo, M.D., P.C. (hereinafter Capo). The plaintiff commenced this action against the defendants, alleging that she fell when her foot became entangled in wires. The Supreme Court, inter alia, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Capo, and Capo appeals.
The defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against Capo, as the evidence they submitted in support of their motion raised a triable issue of fact as to whether one of Capo's employees created the alleged hazardous condition (see Willis v. Galileo Cortlandt, LLC, 106 A.D.3d 730, 732, 964 N.Y.S.2d 576 ; Velez v. New York City Hous. Auth., 91 A.D.3d 422, 936 N.Y.S.2d 28 ). Since the defendants failed to meet their prima facie burden as to Capo, that branch of their motion was properly denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Accordingly, we agree with the Supreme Court's denial of that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Capo.
SCHEINKMAN, P.J., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.