Kolosovskiy v. Vitale

May 10, 2004
Versions:7 A.D.3d 579
775 N.Y.S.2d 882

an action, inter aha, to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Kings County (Jones, J.), dated October 9, 2003, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

As the moving party on a motion for summary judgment, the defendant bore the prima facie burden of establishing entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The defendant, who concededly failed to raise the issue of notice or foreseeability (see Jacqueline S. v City of New York, 81 NY2d 288 [1993]; Nallan v Helmsley-Spear, Inc., 50 NY2d 507 [1980]), failed to sustain his prima facie burden. Consequently, the burden never shifted to the plaintiffs to establish the existence of a triable issue of fact as to foreseeability (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and the court need not consider the sufficiency of the opposition papers to that extent (see Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]).

On the other questions tendered by the defendant regarding the alleged broken door and whether the assailants were invitees, the plaintiffs raised triable issues of fact precluding summary judgment on those grounds. Altman, J.P, S. Miller, Luciano and Crane, JJ., concur.