Opinion
2001-05726
Argued December 11, 2001.
January 28, 2002.
In an action to recover damages for personal injuries, etc., the defendant J.D. Posillico, Inc., appeals from so much of an amended order of the Supreme Court, Nassau County (Segal, J.), dated January 2, 2001, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.
Martyn, Toher, Esposito Martyn, Mineola, N.Y. (Joseph S. Holotka of counsel), for appellant.
Before: DAVID S. RITTER, ACTING P.J., NANCY E. SMITH, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
ORDERED that the amended order is affirmed insofar as appealed from, without costs or disbursements.
The injured plaintiff (hereinafter the plaintiff), an employee of the third-party defendant, Chipco Construction and Contracting (hereinafter Chipco), was injured while working on a construction project at the home of the defendants Joseph D. Posillico and Marie Posillico. At his deposition, the plaintiff testified that his activities, as well as Chipco's work in general, were closely supervised by an employee of the appellant, J.D. Posillico, Inc. The appellant denied that it was involved in the project.
"It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate" (Heller v. Trustees of Town of E. Hampton, 166 A.D.2d 554, 555; see, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223; Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338). Accordingly, the Supreme Court correctly concluded that the appellant was not entitled to summary judgment since there are issues of fact as to whether it was controlling the work at the site when the plaintiff was injured (see, Rizzuto v. Wenger Constr. Co., 91 N.Y.2d 343; Miranda v. City of New York, 281 A.D.2d 403).
RITTER, ACTING P.J., SMITH, ADAMS and COZIER, JJ., concur.
Motion by the respondents to dismiss an appeal from an amended order of the Supreme Court, Nassau County, dated January 2, 2001, on the ground that the notice of appeal was not timely served, or in the alternative, to enlarge the time to serve and file a brief.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion is denied.
RITTER, ACTING P.J., SMITH, ADAMS and COZIER, JJ., concur.