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Morris v. Schepp

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 6, 2009

MARLENE MORRIS, PLAINTIFF-RESPONDENT,
v.
CHRISTOPHER J. SCHEPP AND SUSAN R. SCHEPP, DEFENDANTS-APPELLANTS.

Appeal from an order of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), entered January 2, 2008 in a personal injury action. The order denied defendants' motion for summary judgment.

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.

PRESENT: SCUDDER, P.J., HURLBUTT, CENTRA, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Supreme Court properly denied defendants' motion to dismiss the claim for punitive damages. We note at the outset that the court properly treated the motion as one for summary judgment pursuant to CPLR 3211 (c), and we conclude that defendants failed to meet their initial burden on the motion inasmuch as they failed to establish their entitlement to judgment as a matter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Defendants' remaining contention is raised for the first time on appeal and thus is not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985).

20090206

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