Mulhern v. Scibelli

Mulhern v Scibelli (2016 NY Slip Op 03478)

Mulhern v Scibelli

2016 NY Slip Op 03478

Decided on May 4, 2016

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 May 4, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SHERI S. ROMAN
JOSEPH J. MALTESE
FRANCESCA E. CONNOLLY, JJ.

2015-09362
(Index No. 705316/13)

[*1]Maureen Mulhern, plaintiff-respondent,

v

Vincenzo Scibelli, et al., appellants, Stop & Shop Supermarket Company, LLC, defendant-respondent.

Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum], of counsel), for appellants.

Cascione, Purcigliotti & Galluzzi, P.C., New York, NY (Thomas G. Cascione and Kelly Murtha of counsel), for plaintiff-respondent.

Ahmuty, Demers & McManus, Albertson, NY (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for defendant-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Vincenzo Scibelli and Rose Scibelli appeal from so much of an order of the Supreme Court, Queens County (Velasquez, J.), entered July 20, 2015, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

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

In support of their motion for summary judgment dismissing the complaint and cross claims insofar as asserted against them, the defendants Vincenzo Scibelli and Rose Scibelli demonstrated their prima facie entitlement to judgment as a matter of law by establishing that they were free from fault in the happening of the alleged accident (see Miller v United Parcel Serv., Inc., 131 AD3d 1023, 1024; Pollack v Margolin, 84 AD3d 1341, 1342). However, in opposition, the plaintiff raised a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the Supreme Court properly denied their motion.

BALKIN, J.P., ROMAN, MALTESE and CONNOLLY, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court