Opinion
564, 565
March 20, 2003.
Judgment, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered August 9, 2002, dismissing the complaint and bringing up for review the underlying order, same court and Justice, entered February 20, 2002, which, inter alia, granted defendants' motion for summary judgment, unanimously affirmed, with costs. Appeal from the underlying February 20, 2002 order, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.
Frederic B. Potack, for plaintiff-appellant.
Eugene I. Farber, for defendants-respondents.
Before: Nardelli, J.P., Tom, Andrias, Saxe, Williams, JJ.
The IAS court properly granted defendants summary judgment dismissing the complaint since plaintiff did not, in opposition to defendants' prima facie showing of entitlement to judgment as a matter of law, demonstrate the existence of any triable question of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Indeed, the allegations of plaintiff's complaint are decisively contradicted by documentary evidence and plaintiff's own deposition testimony, and we note that the scenario set forth in the complaint appears to have now been entirely abandoned inasmuch as the preliminary statement contained in plaintiff's appellate brief sets forth facts significantly at variance with those pleaded.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.