Opinion
2013-02-13
Brice RUPERTI, et al., respondents, v. AVALON GOLD, LLC, defendant, Robert J. Iannucci, et al., appellants.
Marshall Conway & Bradley, P.C., New York, N.Y. (Allison J. Seidman of counsel), for appellants. Antin, Ehrlich & Epstein, LLP, New York, N.Y. (Jeffrey S. Antin and Kimberly S. Edmonds of counsel), for respondents.
Marshall Conway & Bradley, P.C., New York, N.Y. (Allison J. Seidman of counsel), for appellants. Antin, Ehrlich & Epstein, LLP, New York, N.Y. (Jeffrey S. Antin and Kimberly S. Edmonds of counsel), for respondents.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, etc., the defendants Robert J. Iannucci and Sonia O. Ewers appeal from so much of an order of the Supreme Court, Kings County (Saitta, J.), dated September 22, 2011, as denied that branch of their cross motion which was for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the cross motion of the defendants Robert J. Iannucci and Sonia O. Ewers which was for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against them. The defendants failed to show that they neither created nor had actual or constructive notice of the existence of the dangerous condition in the subject elevator ( see Ventimiglia v. Thatch, Ripley & Co., LLC, 96 A.D.3d 1043, 947 N.Y.S.2d 566;Vella v. One Bryant Park, LLC, 90 A.D.3d 645, 935 N.Y.S.2d 31;Gray v. City of New York, 87 A.D.3d 679, 928 N.Y.S.2d 759). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is not necessary to review the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;Giraldo v. Twins Ambulette Serv., Inc., 96 A.D.3d 903, 946 N.Y.S.2d 871;Petrillo v. Town of Hempstead, 85 A.D.3d 996, 925 N.Y.S.2d 660).