Fernandez v Jeune

Fernandez v Jeune 2010 NY Slip Op 06358 [76 AD3d 537] August 10, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 29, 2010

Fanny Fernandez, Respondent,
v
Jean Jeune et al., Respondents, and Luz Martinez, Appellant.

—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucci of counsel), for appellant.

Dansker & Aspromonte, New York, N.Y. (Raymond Maceira of counsel), for plaintiff-respondent.

Gold, Stewart, Kravatz, Benes LLP, Westbury, N.Y. (Jeffrey B. Gold, Robert J. Stone, Jr., and Lauren Lagrua of counsel), for defendants-respondents Paul Essai and Marcaisse Cherident.

In an action to recover damages for personal injuries, the defendant Luz Martinez appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated March 24, 2009, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her.

Ordered that the order is affirmed, with one bill of costs to the plaintiff-respondent and the defendants-respondents Paul Essai and Marcaisse Cherident appearing separately and filing separate briefs.

The defendant Luz Martinez failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Triable issues of fact exist, inter alia, as to whether Martinez was negligent in failing to remove her vehicle from a dangerous place and, if so, whether her negligence proximately caused the plaintiff's injuries (see Eltahan v Rejouis, 7 AD3d 660, 661 [2004]; O'Sullivan v Minjae Kim, 293 AD2d 728, 729 [2002]). The failure to make a prima facie showing eliminating those issues of fact required the denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Accordingly, the Supreme Court properly denied Martinez's motion for summary judgment dismissing the complaint insofar as asserted against her. Rivera, J.P., Balkin, Austin and Roman, JJ., concur.