Opinion
No. 1793-1793A.
October 23, 2007.
Orders, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about February 1 and 2, 2007, which, to the extent appealed from, denied the motion by defendants Squicciarini, Gristede's Foods NY, Gristede's NY, Sloan's and the Red Apple defendants for summary judgment, and, upon plaintiff's motion for reargument and renewal of a prior order, denied the earlier motion of defendants Moskowitz and Gildea for summary judgment, unanimously affirmed, without costs.
Cozen O'Connor P.C., New York (Vincent P. Pozzuto of counsel), for appellants.
Law Offices of William Cafaro, New York (Steven M. Pivovar of counsel), for respondent.
Before: Lippman, P.J., Andrias, Williams, Buckley and Malone, JJ.
On their motion for summary judgment, the supermarket defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. The affidavit submitted from a corporate officer was conclusory and did not address the allegations regarding ownership or control of the baler, the machine alleged to have caused plaintiffs injury. Furthermore, defendant Squicciarini failed to demonstrate, as a matter of law, that he is a special employee of plaintiffs employer. There are also questions of fact regarding whether defendants Moskowitz and Gildea were coemployees of plaintiff or whether they were employed by an entity other than plaintiffs employer at the time of the alleged negligence.