Opinion
No. 396 CA 22-00366
06-09-2023
ALICE MONTGOMERY, PLAINTIFF-APPELLANT, v. BURLINGTON COAT FACTORY OF TEXAS, INC., EXCEL BUILDING SERVICES CORPORATION, ALSO KNOWN AS EXCEL BUILDING SERVICES, LLC, AND T2H SYRACUSE, INC., DOING BUSINESS AS HELPING HANDS, DEFENDANTS-RESPONDENTS.
VINAL & VINAL, P.C., BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR PLAINTIFF-APPELLANT. SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR DEFENDANT-RESPONDENT BURLINGTON COAT FACTORY OF TEXAS, INC. LAW OFFICES OF SANTACROSE, FRARY, TOMKO, DIAZ-ORDAZ & WHITING, BUFFALO (RICHARD S. POVEROMO OF COUNSEL), FOR DEFENDANT-RESPONDENT EXCEL BUILDING SERVICES CORPORATION, ALSO KNOWN AS EXCEL BUILDING SERVICES, LLC. LIPPMAN O'CONNOR, BUFFALO (ROBERT H. FLYNN OF COUNSEL), FOR DEFENDANT-RESPONDENT T2H SYRACUSE, INC., DOING BUSINESS AS HELPING HANDS.
VINAL & VINAL, P.C., BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR PLAINTIFF-APPELLANT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR DEFENDANT-RESPONDENT BURLINGTON COAT FACTORY OF TEXAS, INC.
LAW OFFICES OF SANTACROSE, FRARY, TOMKO, DIAZ-ORDAZ & WHITING, BUFFALO (RICHARD S. POVEROMO OF COUNSEL), FOR DEFENDANT-RESPONDENT EXCEL BUILDING SERVICES CORPORATION, ALSO KNOWN AS EXCEL BUILDING SERVICES, LLC.
LIPPMAN O'CONNOR, BUFFALO (ROBERT H. FLYNN OF COUNSEL), FOR DEFENDANT-RESPONDENT T2H SYRACUSE, INC., DOING BUSINESS AS HELPING HANDS.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, JJ.
Appeal from an order of the Supreme Court, Monroe County (Debra A. Martin, A.J.), entered February 15, 2022. The order granted the motions of defendants for summary judgment dismissing the second amended complaint against them.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff appeals from an order insofar as it granted defendants' motions seeking summary judgment dismissing the second amended complaint against them. We affirm for reasons stated in the decision at Supreme Court. We write only to note that, contrary to the court's determination, it was not required under 22 NYCRR 202.8-g (former [c]) to deem the assertions in two defendants' statements of material facts admitted based on plaintiff's failure to controvert them (see On the Water Prods., LLC v Glynos, 211 A.D.3d 1480, 1481 [4th Dept 2022]). We nonetheless conclude that the court properly determined that defendants otherwise met their initial burden on their motions, and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).