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Stile v. Jen Marine Development

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


January 12, 2010

JOSEPH STILE, ET AL., APPELLANTS,
v.
JEN MARINE DEVELOPMENT, LLC, D/B/A GATEWAY MARINA, RESPONDENT (AND A THIRD-PARTY ACTION).

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Saitta, J.), dated November 25, 2008, as, in effect, upon reargument, adhered to its original determination in an order of the same court dated September 4, 2008, granting the defendant's motion for summary judgment dismissing the complaint.

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.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG & SANDRA L. SGROI, JJ.

(Index No. 8985/06)

DECISION & ORDER

ORDERED that the order dated November 25, 2008, is affirmed insofar as appealed from, with costs.

As the Supreme Court reviewed the merits on the plaintiffs' motion for leave to reargue, the court, in effect, granted reargument and adhered to its original determination. Therefore, the order dated November 25, 2008, made upon reargument, is appealable (see Matter of Mattie M. v Administration for Children's Servs., 48 AD3d 392, 393; McNeil v Dixon, 9 AD3d 481).

The defendant established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it did not create and did not have actual or constructive notice of the presence of two raised or popped screws, which allegedly caused plaintiff Joseph Stile to fall on a new "Y" dock of the defendant's marina.

The plaintiffs, in response to the defendant's prima facie showing, failed to raise a triable issue of fact (see Yarborough v City of New York, 28 AD3d 650, 651, affd 10 NY3d 726; Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629; see also Alvarez v Prospect Hosp., 68 NY2d 320).

SKELOS, J.P., DICKERSON, ENG and SGROI, JJ., concur.

20100112

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