Aantoninav.New York City

Appellate Division of the Supreme Court of New York, Second DepartmentFeb 27, 2007
37 A.D.3d 765 (N.Y. App. Div. 2007)
37 A.D.3d 765832 N.Y.S.2d 2172007 N.Y. Slip Op. 1686

No. 2006-03394.

February 27, 2007.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Minardo, J.), dated February 17, 2006, which denied their motion for summary judgment on the issue of liability.

Kagan and Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for appellants.

Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for respondents

Before: Schmidt, J.P., Rivera, Covello and Balkin, JJ.

Ordered that the order is affirmed, with costs.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The plaintiffs failed to make the requisite showing in this case. Indeed, the deposition testimony of the witness for the defendant New York City Transit Authority, which the plaintiffs submitted in support of their motion, raised questions of fact regarding the issue of liability. Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability.