Stanziale v. City of New York , 998 N.Y.S.2d 892 ( 2014 )

Stanziale v City of New York (2014 NY Slip Op 08826)

Stanziale v City of New York

2014 NY Slip Op 08826

Decided on December 17, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 17, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
L. PRISCILLA HALL, JJ.

2014-00092
(Index No. 26315/10)

[*1]Janet Stanziale, et al., plaintiffs-respondents,

v

City of New York, defendant-respondent, et al., defendant, Empire Beauty School, appellant.

Cartafalsa Slattery Turpin & Lenoff, New York, N.Y. (David S. Pasternak of counsel), for appellant.

Henry Stanziale, Mineola, N.Y. (Thomas Stanziale pro se of counsel), for plaintiffs-respondents.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Zahra A. Smith, and Karen M. Griffin of counsel), for defendant-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Empire Beauty School appeals from an order of the Supreme Court, Kings County (Baynes, J.), dated May 8, 2013, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separately briefs, and the motion of the defendant Empire Beauty School for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

The facts of this case are set forth in our decision and order in a companion appeal (see Stanziale v City of New York, _____ AD3d _____ [Appellate Division Docket No. 2013-07870; decided herewith]). For the reasons set forth in that decision and order, the defendant Empire Beauty School (hereinafter Empire) established its prima facie entitlement to judgment as a matter of law, the defendant Bauer Properties, LLC, declined to oppose Empire's motion for summary judgment before the Supreme Court, and the evidence submitted by the plaintiffs and the defendant City of New York in opposition to the motion was insufficient to raise a triable issue of fact (see Rodriguez v Themelion Realty Corp., 94 AD3d 733).

The remaining contentions of the plaintiffs and the City are either without merit or improperly raised for the first time on appeal.

Accordingly, the Supreme Court should have granted Empire's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

DILLON, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court