Komonaj v Curanovic

Komonaj v Curanovic 2011 NY Slip Op 09003 Decided on December 15, 2011 Appellate Division, First 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 15, 2011
Mazzarelli, J.P., Saxe, Friedman, Acosta, Freedman, JJ.
8864/07

[*1]4588 Ariana Komonaj, etc., et al., Plaintiffs-Respondents,

v

Kola Curanovic, et al., Defendants-Appellants, 3021 Briggs Avenue Realty Corp., Defendant.




Krinsky & Musumeci, New York (James E. Gear of counsel),
for appellants.
Joseph T. Mullen & Associates, New York (Allan L. Brenner
of counsel), for respondents.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or about March 9, 2010, which, to the extent appealed from, denied individual defendants Kola Curanovic and Gjon Vcaj's motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The infant plaintiffs allegedly suffered injuries as a result of exposure to lead-based paint in their apartment in the building owned by the corporate defendant. Supreme Court properly denied the motion for summary judgment dismissing the complaint as against the individual defendants, who are officers and employees of the corporate defendant. In moving for summary judgment, the individual defendants failed to present evidence that, if uncontroverted, would have established that they did not personally participate in malfeasance or misfeasance constituting an affirmative tortious act (see Peguero v 601 Realty Corp., 58 AD3d 556, 558-559 [2009]; Espinosa v Rand, 24 AD3d 102, 102 [2005]). In the absence of such evidence, the individual defendants failed to make a prima facie showing that they were entitled to judgment as a matter of law, and this failure required the denial of their summary judgment motion regardless [*2]of the sufficiency of the opposing papers (see Ayotte v Gervasio, 81 NY2d 1062 [1993]).

We have considered the individual defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2011

CLERK