Opinion
No. 98 SSM 20
09-12-2019
La Nona Jean SALINAS, Appellant, v. WORLD HOUSEWARE PRODUCING CO., LTD., et al., Respondents.
Bandas Law Firm, P.C., Corpus Christi, Texas (Robert Clore, of the Texas bar, admitted pro hac vice, of counsel), and Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola (Michael Villeck of counsel), for appellant. Lynch Rowin LLP, White Plains (Thomas P. Lynch of counsel), for World Houseware Producing Co., Ltd., respondent. Russo & Toner, LLP, New York City (Theresa C. Villani of counsel), for Josie Accessories, Inc., respondent. Marshall Dennehey Warner Coleman & Goggin, New York City (Adam C. Calvert of counsel), for Dolgencorp of Texas, Inc., respondent.
Bandas Law Firm, P.C., Corpus Christi, Texas (Robert Clore, of the Texas bar, admitted pro hac vice, of counsel), and Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola (Michael Villeck of counsel), for appellant.
Lynch Rowin LLP, White Plains (Thomas P. Lynch of counsel), for World Houseware Producing Co., Ltd., respondent.
Russo & Toner, LLP, New York City (Theresa C. Villani of counsel), for Josie Accessories, Inc., respondent.
Marshall Dennehey Warner Coleman & Goggin, New York City (Adam C. Calvert of counsel), for Dolgencorp of Texas, Inc., respondent.
OPINION OF THE COURT
MEMORANDUM. The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.
The courts below erred in granting defendants' motions for summary judgment on the basis that plaintiff failed to raise a triable issue of fact sufficient to defeat the motions. Although the plaintiff's deposition testimony partially contradicted the factual conclusions reached by her expert witnesses, the expert opinions were based upon other record evidence and were neither speculative nor conclusory. Insofar as plaintiff raised genuine issues of fact on the element of causation, summary judgment should not have been granted on that ground (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ; see generally Skelka v. Metropolitan Tr. Auth., 76 A.D.2d 492, 497–498, 430 N.Y.S.2d 840 [2d Dept. 1980], lv denied 51 N.Y.2d 709, 434 N.Y.S.2d 1025, 415 N.E.2d 984 [1980] & lv dismissed 51 N.Y.2d 1008 [1980] ). We remit for Supreme Court to consider the alternative grounds for summary judgment defendants raised in their motions and neither Supreme Court nor the Appellate Division reached.
Judges Rivera, Stein, Fahey and Wilson concur. Chief Judge DiFiore and Judges Garcia and Feinman dissent and vote to affirm for reasons stated in the Appellate Division memorandum decision ( Salinas v. World Houseware Producing Co., Ltd., 166 A.D.3d 493, 86 N.Y.S.3d 715 [1st Dept. 2018] ). On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11 ), order reversed, with costs, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein.