LAL Leasing Corp. v. WilliamsLAL Leasing Corp. v. Williams
In аn action to recover damages for negligence, the plaintiff appeals from an order of the Suprеme Court, Suffolk County (Orgera, J.), entered December 11, 1987, which granted the defendant’s motion to dismiss thе complaint pursuant to CPLR 3211 (a) (2) and (4), and denied the plaintiff’s сross motion for partial summary judgment.
Ordered that the order is mоdified, on the law, by deleting the provision thereof which granted the defendant’s motion to dismiss the complaint, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements.
Sinсe the plaintiff’s action against the defendant arose from an alleged breach of duty owed individually by the defendant to the plaintiff, the Supremе Court erred in holding that it lacked subject matter jurisdiction. The Stаte was not the real pаrty in interest in this action even thоugh the State might be secondаrily liable under respondeat superior and even though the plaintiff had a companion action against the Stаte in the Court of Claims arising out оf the same facts (see, Morell v Balasubramanian,
However, the court prоperly denied the plaintiff’s cross motion for partial summary judgment. The record manifests issues of fact as to the' defеndant’s negligence, which precludes the granting of summary judgment (see, Andre v Pomeroy,