Zablow v. DiSavino

Mar 17, 2003
Versions:303 A.D.2d 583
756 N.Y.S.2d 767

—In an action to recover damages for injury to real property pursuant to RPAPL 861 and for negligence, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Barone, J.), entered November 26, 2001, which granted the motion of the defendant Anthony Cutri, also known as Toni Cutri, for summary judgment dismissing the complaint insofar as asserted against him, and (2) an amended order of the same court entered November 28, 2001, which granted the separate motions of the defendant Leonard DiSavino and Anthony Cutri, also known as Toni Cutri for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the appeal from the order entered November 26, 2001, is dismissed, as that order was superseded by the amended order entered November 28, 2001; and it is further,

Ordered that the amended order entered November 28, 2001 is reversed, on the law, the order entered November 26, 2001, is vacated, and the complaint is reinstated; and it is further,

Ordered that one bill of costs is awarded to the appellant.

After the defendants made out a prima facie case for summary judgment, the plaintiff showed the existence of a triable issue of fact sufficient to warrant the denial of the motions. Accordingly, the Supreme Court erred in granting the motions (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Florio, J.P., Feuerstein, Friedmann and Rivera, JJ., concur.