Bin Gu v Palm Beach Tan, Inc.

Bin Gu v Palm Beach Tan, Inc. 2011 NY Slip Op 01423 Decided on February 22, 2011 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 February 22, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2010-01377
(Index No. 1032/07)

[*1]Bin Gu, respondent,

v

Palm Beach Tan, Inc., et al., defendants third third-party plaintiffs/fourth third-party plaintiffs, et al., defendant third-party plaintiff, RD Management LLC, et al., defendants, New York Connecticut Development Corp., defendant third- party defendant/second third-party plaintiff/third third-party defendant; Smart Choice of New York, Inc., second third-party defendant/fourth third- party defendant-appellant.




Marks, O'Neill, O'Brien & Courtney, P.C., Elmsford, N.Y. (Brian
Meissner of counsel), for second third-party defendant/fourth third-
party defendant-appellant.
Caesar & Napoli, New York, N.Y. (Robert Stein of counsel),
for respondent.
Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T.
Fitzpatrick of counsel), for defendants
RD Management, LLC, and FB Mt.
Kisco Owner, LLC.


DECISION & ORDER

In an action to recover damages for personal injuries, the second third-party defendant/fourth third-party defendant, Smart Choice of New York, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flaherty, J.), entered December 3, 2009, as denied that branch of its motion which was for summary judgment dismissing the cause of action in the amended complaint alleging a violation of Labor Law § 240(1).

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

The Supreme Court correctly denied that branch of the motion of the second third-party defendant/fourth third-party defendant, Smart Choice of New York, Inc., which was for summary judgment dismissing the cause of action in the amended complaint alleging a violation of Labor Law § 240(1), because triable issues of fact exist as to whether the plaintiff's alleged conduct was the sole proximate cause of the subject accident, for the reasons stated in Bin Gu v Palm Beach Tan, Inc., (AD3d [Appellate Division Docket No. 2010-00302; decided herewith]).
MASTRO, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court