Flavin v Parisi

Flavin v Parisi 2013 NY Slip Op 08594 Decided on December 26, 2013 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 December 26, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.
2012-09712
(Index No. 54379/11)

[*1]Patrick J. Flavin, et al., plaintiffs,

v

Salvatore Parisi, defendant. (Action No. 1) Patrick J. Flavin, et al., appellants, Salvatore Parisi, defendant, Francis P. Sweeney, et al., respondents. (Action No. 2) (Index No. 56736/12)




Michael A. Russo, White Plains, N.Y. (Christopher Riley of
counsel), for appellants.
Wilson, Bave, Conboy, Cozza & Couzens, P.C., White
Plains, N.Y. (William H. Bave, Jr., of
counsel), for respondent Francis P.
Sweeney.


DECISION & ORDER

In two related actions to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated August 28, 2012, as granted that branch of the motion of Francis P. Sweeney, a defendant in Action No. 2, which was for summary judgment dismissing the complaint insofar as asserted against him and, upon searching the record, directed the dismissal of the complaint in Action No. 2 insofar as asserted against the defendant Salvatore Leone.

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

The Supreme Court properly granted that branch of the motion of the defendant Francis P. Sweeney which was for summary judgment dismissing the complaint in Action No. 2 insofar as asserted against him. Sweeney met his prima facie burden of establishing that the ownership of a hunting cabin as tenants in common by Sweeney and the defendants Salvatore Parisi and Salvatore Leone did not constitute a partnership as defined by the New York Partnership Law because the ownership of the cabin was for recreational use only and was not a business for profit (see Partnership Law §§ 10[1]; 11[2]). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether a partnership existed.

The plaintiffs' remaining contentions are either without merit or improperly raised for the first time on appeal. [*2]

In light of the foregoing, the Supreme Court also properly searched the record and awarded summary judgment to Leone (see CPLR 3212[b]).
SKELOS, J.P., DICKERSON, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court