Prophete v Ruiz-Garcia

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Prophete v Ruiz-Garcia 2020 NY Slip Op 35160(U) December 18, 2020 Supreme Court, Suffolk County Docket Number: Index No. 608288/2018 Judge: Joseph A. Santorelli Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 608288/2018 FILED: SUFFOLK COUNTY CLERK 12/22/2020 10:58 AM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 12/22/2020 ORIGINAL ORIGI AL SHORT FORM ORDER SHORT FORM ORDER INDEX No. No. INDEX 608288/2018 608288/2018 CAL. No. No. 202000177MV 202000177MV NEW YORK YORK SUPREME COURT SUPREME COURT - STATE STATE OF NEW I.A.S. PART 10 - SUFFOLK LA.S. PART SUFFOLK COUNTY COUNTY PRESENT: PRESENT: Hon. 6/18/20 (002) (002) MOTION DATE DA TE 6/18/20 MOTION 6/19/20 (001) MOTION DATE DATE .. 6/19/20 (001) MOTION 9/24/20 ADJ. DATE DATE 9/24/20 Mot. Seq.# Seq. # 001 MD Mot. Seq.# Seq. # 002 MD JOSEPH A. SANTORELLI JOSEPH SANTORELLI Justice Supreme Court Justice of of the Supreme Court ---------------------------------------------------------------X ---------------------------------------------------------------X . EDWARD YOUNG & ASSOCIATES EDWARD R. YOUNG ASSOCIATES Attorney for Plaintiff Plaintiff Attorney 112 Farmingdale Farmingdale Road, Road, Rte 109 West Babylon, Babylon, New New York York 11704 West 11704 MARY PROPHETE, MARY PROPHETE, Plaintiff, Plaintiff, LEWIS JOHS AVALLONE AVILES AVILES·. LEWIS JOHS AVALLONE Attorney for Defendants Defendants Attorney One CA Plaza, Plaza, Suite Suite 225 Islandia, New York York 11749 11749 Islandia, New - against against- OSCAR RUIZ-GARCIA and JOSE OSCAR A. RUIZ-GARCIA JOSE ARGUETA, ARGUETA, .,......." DESENA ESQS. DESENA & SWEENEY, SWEENEY, ESQS. Attorney for Third-Party Defendants Attorney Third-Party Defendants 1500 Lakeland Lakeland Avenue A venue Bohemia, New York York 11716 Bohemia, New 11716 Defendants. Defendants. ---------------------------------------------------------------X ---------------------------------------------------------------X OSCAR and JOSE OSCAR A. RUIZ-GARCIA RUIZ-GARCIA and JOSE ARGUETA, ARGUETA, Third-Party Plaintiffs, Third-Party Plaintiffs, against- - against MARY PROPHETE PROPHETE and PIERRE PIERRE PROPHETE, PROPHETE, MARY I Third-Party Defendants. Defendants. Third-Party -----------------------~---------------------------------------J( -----------------------.-------------------------------------X· [* 1] 1 of 5 FILED: SUFFOLK COUNTY CLERK 12/22/2020 10:58 AM NYSCEF DOC. NO. 91 INDEX NO. 608288/2018 RECEIVED NYSCEF: 12/22/2020 Prophete v Ruiz-Garcia Ruiz-Garcia Prophete Index No. 608288/2018 608288/2018 Index Page 2 Upon the following following papers read on this motion motion for summary summary judgment: of Motion/ Motion/ Order Order to Show Show Cause Cause Upon papers read judgment : Notice Notice of supporting papers third-party defendant defendant Prophete, Prophete, dated dated May May 20, 2020, 2020, and by defendants, defendants, dated dated May May 2 21, 2020 ; I, 2020 and supporting papers by third-party Notice of Cross Cross Motion Motion and supporting supporting papers _; Answering Affidavits Affidavits and supporting supporting papers dated September September Notice of papers_; Answering papers by plaintiff, plaintiff, dated 8, 2020 2020 ; Replying Replying Affidavits Affidavits and and supporting supporting papers third-party defendant defendant Prophete, Prophete, dated dated September September 22, 2020, 2020, and by papers by third-party defendants, dated dated September September 22, 2020 2020 ; Other Other _; defendants, _ ; it is ORDERED that that the motion motion (#001) (#001) by third-party third-party defendant defendant Pierre Pierre Prophete Prophete and the motion motion ORDERED (#002) by defendants/third-party defendants/third-party plaintiffs Oscar Ruiz-Garcia Ruiz-Garcia and Jose Jose Argueta consolidated (#002) plaintiffs Oscar Argueta hereby hereby are consolidated of this this determination; determination; and it is for the purposes purposes of ORDERED that that the motion motion by third-party third-party defendant defendant Pierre Pierre Prophete Prophete seeking seeking summary summary judgment ORDERED judgment dismissing plaintiff complaint is denied; denied; and it is dismissing plaintiffss complaint ORDERED that that the motion defendants/third-party plaintiffs Oscar Ruiz-Garcia Ruiz-Garcia and Jose Jose ORDERED motion by defendants/third-party plaintiffs Oscar Argueta seeking summary summary judgment dismissing plaintiff complaint is denied. denied. Argueta seeking judgment dismissing plaintiffss complaint Plaintiff Mary Mary Prophete Prophete commenced commenced this this action action to recover recover damages damages for injuries injuries she allegedly allegedly Plaintiff sustained as a result result of of a motor motor vehicle vehicle accident accident that that occurred occurred at the intersection intersection of of Great Great Neck Road and Neck Road sustained Brefini Street Street in the Town Town of of Babylon Babylon on March March 5, 2017. 2017. Plaintiff, Plaintiff, by her complaint, complaint, alleges alleges that that she Brefini riding as a front seat seat passenger vehicle operated operated by her husband, husband, third-party third-party defendant defendant Pierre Pierre was riding passenger in the vehicle Prophete, when when the vehicle vehicle owned owned by defendant/third-party defendant/third-party plaintiff Jose Argueta Argueta and and operated operated by Prophete, plaintiff Jose defendant/third-party plaintiff Oscar Ruiz-Garcia Ruiz-Garcia crossed crossed over over the double double yellow yellow lines, lines, striking striking the front defendant/third-party plaintiff Oscar passenger of the Prophete Prophete vehicle. vehicle. By her bill of of particulars, alleges, among among other other things, things, passenger side of particulars, plaintiff plaintiff alleges, that she sustained sustained various various personal injuries as a result result of of the subject subject accident, accident, including including cervicalgia, cervicalgia, that personal injuries cervical radiculopathy, radiculopathy, and and multilevel multilevel disc bulges herniations of of the cervical cervical and lumbar lumbar spine. spine. cervical bulges and herniations Thereafter, defendants/third-party defendants/third-party plaintiffs Oscar Ruiz-Garcia Ruiz-Garcia and Jose Jose Argueta Argueta commenced commenced a thirdthirdThereafter, plaintiffs Oscar party action against against Pierre Pierre Prophete Prophete to recover damages for contribution contribution and and indemnification. indemnification. party action recover damages Third-party defendant defendant Pierre Pierre Prophete Prophete now summary judgment that the Third-party now moves moves for summary judgment on the basis basis that injuries plaintiff alleges to have have sustained sustained as a result result of of the subject subject accident accident fail to meet meet the serious serious injuries plaintiff alleges injury threshold threshold requirement requirement of of Insurance Insurance Law§ Law S 5102 (d). In support support of of the motion, motion, third-party third-party injury defendant submits submits copies copies of of the pleadings, deposition transcript, transcript, and the sworn sworn medical medical defendant pleadings, plaintiff plaintiffss deposition reports of of Dr. Craig Craig Ordway Ordway and and Dr. Jean-Robert Jean-Robert Desrouleaux. Desrouleaux. At the request request of of third-party third-party defendant defendant reports Prophete, Dr. Ordway Ordway performed independent orthopedic orthopedic examination examination of of the plaintiff Prophete, performed an independent plaintiff on November November Also at the request request of ofthird-party defendant Prophete, Prophete, Dr. Desrouleaux Desrouleaux conducted conducted an third-party defendant 19, 2019. Also independent neurologic neurologic examination examination of of the plaintiff 2019. Defendants/third-party Defendants/third-party independent plaintiff on November November 11, 2019. plaintiffs Oscar Ruiz-Garcia Ruiz-Garcia and and Jose Jose Argueta Argueta (hereinafter (hereinafter "defendants") "defendants") also move move for summary summary plaintiffs Oscar judgment that the plaintiffs injuries do not come come within within the meaning meaning of of the serious serious injury injury judgment on the basis basis that plaintiffs injuries threshold requirement requirement of of the the Insurance Insurance Law. In support support of of the motion, motion, defendants defendants submit submit copies copies of of the threshold pleadings, deposition transcript, transcript, and the sworn sworn medical medical report report of of Dr. Frank Frank Oliveto. Oliveto. At the pleadings, plaintiffs plaintiffs deposition request of of defendants, defendants, Dr. Oliveto Oliveto conducted conducted an independent independent orthopedic orthopedic examination examination of of the plaintiff request plaintiff on September 9, 9,2019. September 2019. Plaintiff opposes opposes the the motions motions on the grounds grounds that that third-party third-party defendant defendant Prophete Prophete and defendants defendants Plaintiff meet their their prima that the evidence evidence submitted submitted in opposition opposition demonstrates demonstrates that failed to meet prima facie burden, burden, and that [* 2] 2 of 5 FILED: SUFFOLK COUNTY CLERK 12/22/2020 10:58 AM NYSCEF DOC. NO. 91 INDEX NO. 608288/2018 RECEIVED NYSCEF: 12/22/2020 Prophete Ruiz-Garcia Prophete v Ruiz-Garcia Index No. 608288/2018 608288/2018 Page 3 of use" use" and the "90/180" categories of of the Insurance Insurance Law Law due to she sustained injuries in the "limitations sustained injuries "limitations of "90/180" categories the subject motion, plaintiff plaintiff submits submits her own own affidavit, affidavit, a certified certified copy copy of of subject accident. accident. In opposition opposition to the motion, the police police accident report, the sworn sworn medical medical report report of of Dr. James James McGhee, McGhee, the certified certified records records of of Perry accident report, Physical Medicine & Rehabilitation, uncertified copies copies of of her medical medical records records concerning concerning the Physical Medicine Rehabilitation, and uncertified injuries injuries at issue. It has long long been been established that the "legislative intent underlying underlying the No-Fault No-Fault Law Law was was to weed weed established that "legislative intent out frivolous limit recovery recovery to significant significant injuries" injuries" (Dufel (Dufel v Green, NY2d 795, 798, 622 frivolous claims claims and limit Green, 84 NY2d see Toure Avis RentA Rent A Car Sys., 98 NY2d NY2d 345, 746 NYS2d NYS2d 865 [2002)). NYS2d 900 [1995]; NYS2d [1995]; see Toure v Avis CarS)Js., [2002]). Therefore, plaintiff has sustained sustained a "serious injury" is to be made made Therefore, the determination determination of of whether whether or not a plaintiff "serious injury" instance (see Licari Licari v Elliott, Elliott, 57 NY2d NY2d 230, 455 NYS2d NYS2d 570 [1982]; [1982]; Porcano Porcano v by the court court in the first instance NYS2d 590 [2d Dept Dept 1988]; Nolan Nolan v Ford, Ford, 100 AD2d AD2d 579, 579,473 NYS2d Lehman, 255 AD2d Lehman, AD2d 430,680 430,680 NYS2d 473 NYS2d 516 [2d Dept], ajfd 64 NY2d NY2d 681,485 NYS2d 526 [1984]). Dept], affd 681, 485 NYS2d [1984]). Insurance Law Law §S 5102 (d) (d) defines injury" as "a personal injury injury which which results results in death; death; Insurance defines a "serious "serious injury" "a personal dismemberment; disfigurement; a fracture; fracture; loss of of a fetus; permanent permanent loss loss of of use of of a body body dismemberment; significant significant disfigurement; of use of of a body body organ organ or organ, member, function function or system; permanent consequential consequential limitation limitation of organ, member, system; permanent member; significant limitation of of a body body function function or system; system; or a medically medically determined determined injury injury or member; significant limitation of use of impairment of non-permanent nature nature which which prevents prevents the injured injured person person from from performing performing substantially substantially impairment of a non-permanent of the material material acts which which constitute constitute such all of such person's person's usual usual and customary customary daily daily activities activities for not less than ninety days during one hundred of the injury injury than ninety during the one hundred eighty eighty days immediately immediately following following the occurrence occurrence of or impairment." impairment." seeking summary summary judgment A defendant defendant seeking judgment on the ground ground that that a plaintiff's plaintiffs negligence negligence claim claim is barred under under the No-Fault Insurance Law barred No-Fault Insurance Law bears bears the initial initial burden burden of of establishing establishing a prima prima facie case case that that the plaintiff plaintiff did not sustain sustain a "serious "serious injury" Toure v Avis Car Sys., Gaddy v Eyler, injury" (see Toure Avis Rent Rent A A Car Sys., supra; supra; Gaddy Eyler, 955,582 [1992]). When 79 NY2d NY2d 955, 582 NYS2d NYS2d 990 990 [1992]). When a defendant defendant seeking seeking summary summary judgment judgment based based on the lack of of serious serious injury "those findings injury relies relies on the findings findings of of the defendant's defendant's own witnesses, witnesses, "those findings must must be in admissible form, [such [such as], affidavits affidavits and affirmations, admissible affirmations, and not unsworn unsworn reports" reports" to demonstrate demonstrate entitlement to judgment matter of entitlement judgment as a matter of law law (Pagano (Pagano v Kingsbury, Kingsbury, 182 AD2d AD2d 268, 268, 270, 270, 587 NYS2d NYS2d 692 Dept 1992]). A defendant defendant may plaintiffs [2d Dept may also establish establish entitlement entitlement to summary summary judgment judgment using using the plaintiff's deposition testimony reports and records deposition testimony and medical medical reports records prepared prepared by the plaintiff's plaintiffs own own physicians physicians (see Fragale v Geiger, Geiger, 288 AD2d AD2d 431, 431, 733 NYS2d Grossman v Wright, Wright, 268 AD2d Fragale NYS2d 901 [2d Dept Dept 2001]; 2001]; Grossman AD2d 79, Dept 2000]; Vignola v Varrichio, Varrichio, 243 AD2d AD2d 464,662 464, 662 NYS2d NYS2d 831 [2d Dept Dept 1997]; 707 NYS2d NYS2d 233 [2d Dept 2000]; Vignola Torres v Micheletti, AD2d 519,616 1994]). Torres Micheletti, 208 AD2d 519,616 NYS2d NYS2d 1006 [2d Dept Dept 1994 ]). Once Once a defendant defendant has met met this burden, the plaintiff plaintiff must must then then submit submit objective objective and and admissible admissible proof proof of of the the nature nature and and degree degree of of the burden, alleged injury injury in order order to meet meet the the threshold threshold of of the statutory statutory standard standard for "serious "serious injury" injury" under under New New alleged York's No-Fault Insurance Law Law (see Dufel Green, supra; supra; Tornabene Tornabene v Pawlewski, AD2d 1025, York's No-Fault Insurance Du/el v Green, Pawlewski, 305 AD2d NYS2d 593 [[4th Dept 2003]; 2003]; Pagano supra). However, However, if if a defendant defendant does does not not 758 NYS2d 4th Dept Pagano v Kingsbury, Kingsbury, supra). establish a prima prima facie case case that that the the plaintiff's plaintiff's injuries injuries do not not meet meet the the serious serious injury injury threshold, threshold, the the court court establish consider the the sufficiency sufficiency of of the plaintiff's plaintiff's opposition opposition papers papers (see Burns AD3d need not consider Burns v Stranger, Stranger, 31 AD3d Dept 2006]; 2006]; Rich-Wing AD3d 726, 726, 795 NYS2d Dept 360, 819 NYS2d NYS2d 60 [2d Dept Rich-Wing v Baboolal, Baboolal, 18 AD3d NYS2d 706 [2d Dept Winegrad v New York York Univ. Med. 851, 487 NYS2d [1985]). 2005]; see generally generally WinegradvNew Med. Ctr., 64 NY2d NY2d 851,487 NYS2d 316 [1985]). [* 3] 3 of 5 FILED: SUFFOLK COUNTY CLERK 12/22/2020 10:58 AM NYSCEF DOC. NO. 91 INDEX NO. 608288/2018 RECEIVED NYSCEF: 12/22/2020 Ruiz-Garcia Prophete Prophete v Ruiz-Garcia Index 608288/2018 Index No. 608288/2018 Page Page44 prima facie establish a prima failed to establish Prophete failed defendant Prophete Based evidence, third-party third-party defendant adduced evidence, the adduced upon the Based upon Hernandez v accident (see Hernandez subject accident case that of the subject result of injury as a result serious injury sustain a serious not sustain did not plaintiff did that plaintiff AD3d 833, 19 133 Mendoza, Pagan Corp.,174 AD3d 513, NYS3d637 Dept 2019]; Mercado v Mendoza, AD3d 2019]; Dept [2d NYS3d637 101 513, AD3d Corp.,174 Dept 280 [2d Dept NYS2d 280 983 NYS2d AD3d 688, Bus Co., 116 AD3d NYS3d Dept 2015]; clemente v MTA Bus 688,983 Sanclemente 2015]; San NYS3d 757 [2d Dept during an Ordway, during orthopedist, Dr. Craig 2014]). examining orthopedist, Craig Ordway, Prophete's examining defendant Prophete's Third-party defendant 2014]). Third-party range found significant accident, found examination subject accident, significant range after the subject years after two years approximately two plaintiff, approximately of the plaintiff, examination ofthe motion in of motion ranges of that "plaintiffs of "plaintiffs ranges concluding that despite concluding shoulder despite right shoulder plaintiffs right limitations in plaintiffs motion limitations of motion hiabtus" (see body hiabtus" and body her age and her spine and right shoulder are within of her (see Gui person of limits for a person normal limits within normal right shoulder her spine 2019]; Farrah v Dept 2019]; 236 [2d Dept Hyun NA v Five Stars Trucking, NYS3d 236 673, 111 NYS3d AD3d 673, Trucking, Inc., 178 AD3d NYS2d 913 NYS2d AD3d 1084, 2013]; Borras v Lewis, 79 AD3d Pinos, 103 AD3d 831, 959 NYS2d 1084,913 Dept 2013]; NYS2d 741 [2d Dept AD3d 831,959 2004]). Dept 2004]). 647 [2d Dept NYS2d 647 784 NYS2d 484, 784 577 [2d Dept AD3d 484, 2010]; Grant vv Parson Coach, Ltd., 12 AD3d Dept 2010]; examined also who Desrouleaux, who also examined the Third-party neurologist, Dr. Desrouleaux, examining neurologist, Prophete's examining defendant Prophete's Third-party defendant myofasciitis the spinal that the concluded that accident, and concluded plaintiff approximately two after the subject accident, spinal myofasciitis the subject years after two years plaintiff approximately plaintiffs address failed resolved, that plaintiff sustained as a result ofthe subject collision was resolved, failed to address plaintiffs result of the subject collision that plaintiff sustained Bitterman v Dennis, particulars (see Bitterman of particulars allegations bill of her bill listed in her clearly listed shoulder clearly right shoulder her right regarding her allegations regarding NYS2d 152 943, 879 NYS2d AD3d Naparano, 78 AD3d 627, 909 NYS2d 672 [2d Dept 2010]; McMillian v Naparano, 61 AD3d 943,879 Dept 2010]; McMillian AD3d 627,909 NYS2d 672 conflicting 2009]). Where NYS2d 550 [2d Dept Dept 2009] 822,875 Dept 2009]). Where conflicting 875 NYS2d AD3d 822, Felton, 60 AD3d 2009] Lopez v Felton, [2d Dept significant, permanent injuries plaintiff's medical evidence is offered on the issue of whether a plaintiff s injuries are permanent or significant, whether of issue the medical evidence offered presented (see been presented and varying (see Barrett has been jury has credibility for the jury of credibility issue of drawn, an issue may be drawn, inferences may varying inferences AD3d 2011]; Jacobs v Rolon, 76 AD3d Dept 2011]; v New York City City Tr. Tr. Auth., 914 NYS2d NYS2d 269 [2d Dept 550,914 AD3d 550, Auth., 80 AD3d Dept NYS2d 72 [1st Dept 446,902 NYS2d AD3d 446,902 905,908 Garcia, 74 AD3d Mercado-Arifv Garcia, 2010]; Mercado-Ari/v Dept 2010]; NYS2d 31 [1st Dept 905,908 NYS2d motion the motion experts submitted 2010]). Thus, the of third-party defendant Prophete's submitted in support support of of the Prophete's experts third-party defendant reports of the reports 2010]). Thus, AD3d 49 Johnson, v O'Shea determine (see 0 jury to determine for summary summary judgment 'Shea Johnson, AD3d of fact for the jury issue of create an issue judgment create 2008]). Dept 2008]). 614, 853 NYS2d NYS2d 608 [2d Dept plaintiffs injuries that plaintiffs Defendants also have failed to meet establish that injuries burden to establish prima facie burden their prima meet their have failed Defendants AD3d 106 Corp., MTLR v Konstantinov MTLR Law (see Konstantinov come within of the AD3d Insurance Law the Insurance meaning of within the meaning not come do not 2011]; Dept 2011]; NYS2d 522 [2d Dept 1055,966 862, 931 NYS2d AD3d 862,931 Domond, 88 AD3d Roe v Domond, 2013]; Roc Dept 2013]; NYS2d 183 [2d Dept 966 NYS2d 1055, 2010]). Dept [2d NYS2d Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989, 907 NYS2d 517 Dept 2010]). 989,907 AD3d & Sais Harborview limitations in motion limitations of motion noted significant Defendants' examining examining orthopedist, orthopedist, Dr.Oliveto, significant range range of Dr.Oliveto, noted Defendants' years after approximately her of examination plaintiff s cervical and lumbar regions during his examination of her approximately two years after the during regions lumbar plaintiffs cervical were her spine sustained to her plaintiff sustained that plaintiff subject accident accident despite strains and sprains that spine were and sprains that the strains concluding that despite concluding subject Dept [2d NYS2d 666,954 AD3d resolved (see Cruz v Advanced Leasing AD3d 666, 954 NYS2d 491 Dept 101 Corp., Leasing Concrete Advanced resolved (see 426, AD3d 426, Khokar, 12 AD3d Nelms v Khokar, 2011]; Nelms Dept 2011]; 2012];Scott NYS2d 351 [2d Dept 736,934 NYS2d AD3d 736,934 2012]; Scott v Gresio, 90 AD3d plaintiffs limitations that plaintiffs 784 NYS2d 2004]). Although indicated that limitations are Oliveto indicated Although Dr. Oliveto Dept 2004]). NYS2d 572 [2d Dept basis for evidence the basis medical evidence subjective in nature, failed to explain objective medical with any objective substantiate with explain or substantiate nature, he failed subjective (see self-imposed were motion of ranges his conclusion that the observed limitations in plaintiffs spinal ranges of motion were self-imposed (see spinal plaintiffs limitations observed the that conclusion AD3d Raguso v Uhriaco, 2015]; Raguso "Mora/ates v Macchia, 1150,77 NYS3d Ubriaco, 97 AD3d Dept 2015]; NYS3d 546 [2d Dept AD3d 1150, Macchia, 127 AD3d ·Mora/ates 2011]). NYS2d 910 [2d Dept 560,947 NYS2d Dept 2012]; Artis v Lucas, 84?, 921 NYS2d Dept 2011]). AD3d 84?, Lucas, 84 AD3d 2012];Artis NYS2d 343 [2d Dept 560,947 burden, it is prima facie their prima Since third-party defendants failed failed to meet facie burden, meet their and defendants Prophete and defendant Prophete third-party defendant Since raise a sufficient were unnecessary for the Court to consider whether plaintiff s papers in opposition were sufficient to raise opposition papers plaintiffs the Court consider whether unnecessary Keenum v 2014]; Keenum Dept 2014]; 267 [2d Dept NYS2d 267 triable Werthner v Lewis, 120 AD3d 490, 990 NYS2d AD3d 490,990 of fact (see Werthner issue of triable issue [* 4] 4 of 5 INDEX NO. 608288/2018 FILED: SUFFOLK COUNTY CLERK 12/22/2020 10:58 AM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 12/22/2020 Prophete v Ruiz-Garcia Ruiz-Garcia Prophete Index No. 608288/2018 608288/2018 Index Page 5 Page Atkins, AD3d 843,918 843, 918 NYS2d Dept 2011]). 2011]). Accordingly, Accordingly, third-party third-party defendant defendant Prophete's Prophete's Atkins, 82 AD3d NYS2d 547 [2d Dept defendants' motions motions for summary summary judgment dismissing plaintiffs complaint are denied. denied. and defendants' judgment dismissing plaintiffs complaint HON. JOSE' FINAL DISPOSITION DISPOSITION FINAL [* 5] X 5 of 5 SANTORELLI. A. SANTORELLI· J.S.C. J.S.C. NON-FINAL DISPOSITION DISPOSITION NON-FINAL

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