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Bowman v. Beach Concerts

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 29, 2009

THOMAS BOWMAN, PLAINTIFF-APPELLANT,
v.
BEACH CONCERTS, INC., DEFENDANT, EAST-WEST TOURING COMPANY, ET AL., DEFENDANTS-RESPONDENTS. [AND A THIRD-PARTY ACTION]

Order, Supreme Court, New York County (Richard F. Braun, J.), entered November 7, 2008, which granted the motion of defendants-respondents East-West Touring Company and Cygnus Productions, LLC for summary judgment dismissing the common-law negligence and Labor Law Section 200 causes of action, unanimously affirmed, without costs.

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.

Gonzalez, P.J., Saxe, Catterson, McGuire, Acosta, JJ.

103824/03 590408/04

As plaintiff concedes, the showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment (see Kaufman v Bauer, 36 AD3d 481, 482 [2007]). Indeed, this Court has previously held that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants (see Gamiel v Curtis & Reiss-Curtis, P.C., 60 AD3d 473, 474 [2009], lv dismissed __ NY3d __ [2009], 2009 NY LEXIS 3484; see also Embraer Fin. Ltd. v Servicios Aereos Profesionales, S.A., 42 AD3d 380, 381 [2007]). Thus, plaintiff's argument that this Court's prior order was "law of the case" precluding summary judgment in respondents' favor, or an "implicit recognition" of the merits of his claims, is without merit.

The motion court correctly found that respondents were entitled to summary judgment dismissing plaintiff's Section 200 and common-law negligence claims. The record is devoid of evidence that respondents had the authority to supervise or control the work giving rise to plaintiff's injury (see Mitchell v New York Univ., 12 AD3d 200, 200-201 [2004]), or that they created or had actual or constructive notice of any allegedly unsafe condition that caused plaintiff's accident (see Canning v Barneys N.Y., 289 AD2d 32, 33 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091029

© 1992-2009 VersusLaw Inc.



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