Perna v. Ellner

Full title: NANCY PERNA, respondent, v. ETHAN ELLNER, appellant, et al., defendant

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

Date published: Jun 28, 1999

262 A.D.2d 620 (N.Y. App. Div. 1999)

691 N.Y.S.2d 895

Opinion

Submitted May 19, 1999

June 28, 1999

In an action, inter alia, to recover damages for injury to property, the defendant Ethan Ellner appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered July 21, 1998, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Vincent M. Gerardi, Garden City, N.Y., for appellant.

Richard W. Fulfree, Yonkers, N.Y., for respondent.

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, DANIEL W. JOY, MYRIAM J. ALTMAN, NANCY E. SMITH, JJ.

DECISION ORDER

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

Because the appellant failed to sustain his burden of proof on his motion for summary judgment dismissing the complaint insofar as asserted against him, the motion was properly denied, regardless of the sufficiency of the plaintiff's opposing papers ( see, Revelo v. Weithorn, 253 A.D.2d 869; Hirsh v. Bert's Bikes Sports, 227 A.D.2d 956).