Tapia v Schindler El. Corp.

Tapia v Schindler El. Corp. 2012 NY Slip Op 03439 Decided on May 1, 2012 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 1, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
ANITA R. FLORIO
ARIEL E. BELEN
SANDRA L. SGROI, JJ.
2011-03247
(Index No. 22707/03)

[*1]Joanne Tapia, et al., respondents,

v

Schindler Elevator Corporation, appellant (and a third-party action).




Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Kevin W.
O'Reilly and Laurence G. McDonnell of counsel), for appellant.
Reingold & Tucker, Brooklyn, N.Y. (Jordan W. Tucker of
counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated December 21, 2010, as denied those branches of its motion which were for summary judgment dismissing the complaint or, in the alternative, to strike the complaint pursuant to CPLR 3126.

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

Contrary to the defendant's contentions, the evidence it submitted in support of that branch of its motion which was for summary judgment dismissing the complaint failed to establish its prima facie entitlement to judgment as a matter of law (see Green v City of New York, 76 AD3d 508, 509; see generally Gaspard v Barkly Coverage Corp., 65 AD3d 1188, 1189; Johnson v Nouveau El. Indus., Inc., 38 AD3d 611, 612; Oxenfeldt v 22 N. Forest Ave. Corp., 30 AD3d 391, 392). Therefore, the Supreme Court properly denied that branch of the defendant's motion regardless of the sufficiency of the plaintiffs' opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The Supreme Court did not improvidently exercise its discretion in declining to strike the plaintiffs' complaint pursuant to CPLR 3126 (see Kihl v Pfeffer, 94 NY2d 118; Polsky v Tuckman, 85 AD3d 750).
SKELOS, J.P., FLORIO, BELEN and SGROI, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court