Grey v Kane
2004 NY Slip Op 00130 [3 AD3d 471]
January 12, 2004
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 24, 2004
Clarence Grey v H.E. Kane
Clarence Grey, Respondent,
H.E. Kane, et al., Appellants.
—In an action, inter alia, to recover damages for civil rights violations pursuant to 42 USC § 1983, the defendants appeal from (1) an order of the Supreme Court, Dutchess County (Hillery, J.), dated October 4, 2002, which denied their motion for summary judgment dismissing the federal civil rights cause of action, and (2) an order of the same court dated January 30, 2003, which granted their motion, in effect, for clarification of stated portions of the order dated October 4, 2002.
Ordered that the appeal from the order dated January 30, 2003, is dismissed, as the defendants are not aggrieved thereby (see CPLR 5511); and it is further,
Ordered that the order dated October 4, 2002, is reversed, on the law, the motion for summary judgment is granted, and the federal civil rights cause of action is dismissed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
In opposition to the defendants' prima facie demonstration of entitlement to judgment as a matter of law with respect to the federal civil rights cause of action, the plaintiff failed to raise a triable issue of fact (see Cummings v McIntire, 271 F3d 341 ; Zuckerman v City of New York, 49 NY2d 557 ). Accordingly, the defendants' motion for summary judgment dismissing that cause of action should have been granted. Ritter, J.P., Florio, S. Miller and H. Miller, JJ., concur.