Opinion
2011-09-27
Rachel CAMPBELL, respondent,v.Yomton G. MALIK, defendant, City of New York, et al., appellants, et al., defendant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Scott Shorr of counsel), for appellants.Segal & Lax, LLP, New York, N.Y. (Patrick Daniel Gatti of counsel), for respondent.
Passarelli & Abiuso, Babylon, N.Y. (Patricia Howlett of counsel), for defendant Yomton G. Malik.
In an action to recover damages for personal injuries, the defendants City of New York and New York City Police Department appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), entered May 13, 2010, as denied, as premature, that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs to the appellants payable by the respondent, and that branch of the motion of the defendants City of New York and New York City Police Department which was for summary judgment dismissing the complaint insofar as asserted against them is granted.
The Supreme Court should have granted that branch of the motion of the defendants City of New York and New York City Police Department (hereinafter together the City defendants) which was for summary judgment dismissing the complaint insofar as asserted against them. The City defendants established their prima facie entitlement to judgment as a matter of law by showing that the plaintiff applied for and accepted Workers' Compensation benefits for her injuries arising out of the subject accident ( see Workers' Compensation Law § 11; Stewart v. Glory Bee Realty Mgt. Corp., 10 A.D.3d 648, 650, 781 N.Y.S.2d 779; DiTommaso v. Marino, 6 A.D.3d 572, 774 N.Y.S.2d 816; Torre v. Schmucker, 275 A.D.2d 365, 366, 712 N.Y.S.2d 581; Lunsford v. Schaffner, 184 A.D.2d 625, 626, 584 N.Y.S.2d 909). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the motion was not properly denied as premature on the ground that discovery had not yet been completed. The plaintiff failed to demonstrate that further discovery might lead to relevant evidence ( see CPLR 3212[f]; Cortes v. Whelan, 83 A.D.3d 763, 922 N.Y.S.2d 419).
To the extent that the City defendants are raising an issue on appeal regarding that branch of their motion which was to dismiss the action insofar as asserted against the defendant Robert E. Fiore as abandoned pursuant to CPLR 3215(c), that branch of the motion was not addressed by the Supreme Court and, thus, remains pending and undecided ( see Joazard v. Joazard, 83 A.D.3d 664, 665, 919 N.Y.S.2d 903; Katz v. Katz, 68 A.D.2d 536, 542–543, 418 N.Y.S.2d 99).
MASTRO, J.P., BALKIN, CHAMBERS and LOTT, JJ., concur.