Smith v Merrill Lynch & Co., Inc.

Smith v Merrill Lynch & Co., Inc. 2010 NY Slip Op 00504 [69 AD3d 843] January 19, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

Noel Smith, Plaintiff,
v
Merrill Lynch & Co., Inc., Defendant, and Fitzgerald & Fitzgerald, P.C., Defendant/Third-Party Plaintiff-Appellant, et al., Defendant/Third-Party Plaintiff. Locator Services Group, Ltd., et al., Third-Party Defendants, and County of Nassau, Third-Party Defendant-Respondent.

—[*1] John M. Daly, Yonkers, N.Y. (Eugene S. R. Pagano and Mitchell L. Gittin of counsel), for defendant/third-party plaintiff-appellant.

Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), for third-party defendant-respondent.

In an action, inter alia, to recover damages for negligence and conversion, the defendant/third-party plaintiff Fitzgerald & Fitzgerald, P.C., appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), dated March 3, 2008, as granted that branch of the motion of the third-party defendant County of Nassau which was for summary judgment dismissing the third-party complaint insofar as asserted by it against that third-party defendant.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the third-party defendant County of Nassau which was for summary judgment dismissing the third-party complaint insofar as asserted against it by the defendant/third-party plaintiff Fitzgerald & Fitzgerald, P.C., is denied.

In support of its motion for summary judgment dismissing the third-party complaint insofar as asserted against it by the appellant, the third-party defendant County of Nassau failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, its motion should have been denied regardless of the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Fisher, J.P., Miller, Eng and Hall, JJ., concur.