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Miano v. 1-9 Seafood Plaza

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 2, 2008

MICHELLE MIANO, ETC., ET AL., RESPONDENTS,
v.
1-9 SEAFOOD PLAZA, INC., ET AL., APPELLANTS, ET AL., DEFENDANTS.

In an action to recover damages for personal injuries, etc., the defendants 1-9 Seafood Plaza, Inc., and Zhi Wen Wu appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated March 6, 2008, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO and CHERYL E. CHAMBERS, JJ.

(Index No. 23125/06)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The evidence submitted by the appellants failed to eliminate all issues of fact as to whether the appellant driver used reasonable care to avoid the subject motor vehicle collision (see Rotondi v Rao, 49 AD3d 520, 521; Cox v Nunez, 23 AD3d 427, 427-428) and whether his failure to observe that which should have been observed was a proximate cause of the accident (see Judice v DeAngelo, 272 AD2d 583). Therefore, the evidence submitted by the appellants in support of their motion failed to establish their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Under these circumstances, it is not necessary to consider the sufficiency of the opposition papers submitted by the plaintiffs (id. at 324).

SPOLZINO, J.P., COVELLO, ANGIOLILLO and CHAMBERS, JJ., concur.

20081202

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