DeCandia v. Calamia

In an action to recover damages for personal injuries, the defendants, Randy Calamia and Janet Kelly Calamia, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Lifson, J.), dated March 2, 2004, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Randy Calamia.

Ordered that the appeal by the defendant Janet Kelly Calamia is dismissed, as she is not aggrieved by the portion of the order appealed from (see CPLR 5511; Carollo v Northern Westchester Hosp. Ctr., 5 AD3d 715 [2004]); and it is further,

Ordered that the order is affirmed insofar as appealed from by the defendant Randy Calamia, with costs.

The defendant Randy Calamia met his initial burden of establishing his prima facie entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In response, however, the plaintiff introduced sufficient evidence to raise a triable issue of fact regarding whether Randy Calamia failed to exercise reasonable care under the circumstances (see Kern v Ray, 283 AD2d 402 [2001]; Puppo v Spano, 252 AD2d 548 [1998]; Comeau v Lucas, 90 AD2d 674 [1982]). Therefore, the branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against that defendant was properly denied (see Fantuzzo v Attridge, 291 AD2d 871, 872 [2002]). Florio, J.P., Smith and Fisher, JJ., concur.