Opinion
Argued October 3, 2000.
December 19, 2000.
In an action to recover damages for personal injuries, etc., the defendants Frank J. Paone and Sheila Paone appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), dated September 24, 1999, as, upon granting that branch of the plaintiffs' motion which was to vacate so much of a prior order of the same court, dated May 26, 1999, as granted their motion for summary judgment dismissing the complaint insofar as asserted against them upon the plaintiffs' default in answering, denied their motion.
Peter J. Creedon Associates, Garden City, N.Y. (James J. Toomey, Jr., of counsel), for appellants.
Eric H. Green, New York, N.Y. (Elliot B. Pasik of counsel), for respondents.
Before: THOMAS R. SULLIVAN, J.P., SONDRA MILLER, HOWARD MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, upon granting that branch of the plaintiffs' motion which was to vacate the plaintiffs' default in opposing the appellants' motion, the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them is granted, and the complaint is dismissed in its entirety.
The appellants Frank J. Paone and Sheila Paone made a prima facie showing of entitlement to judgment as a matter of law (see, Rosenberg v. Equitable Life Assur. Socy., 79 N.Y.2d 663; Steel v. City of New York, 271 A.D.2d 435; see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320). The plaintiffs, in opposition, failed to raise an issue of fact as to whether the appellants were negligent concerning the alleged condition of the roadway. Therefore, the appellants' motion for summary judgment is granted (see, Steel v. City of New York, supra; Alvarez v. Prospect Hosp., supra).