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King v. Falko

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


April 13, 2010

WILLIAM G. KING, ET AL., PLAINTIFFS-RESPONDENTS,
v.
KEITH FALKO, ETC., DEFENDANT-RESPONDENT, CHRIS MENDOLIA, APPELLANT.

In an action to recover damages for personal injuries, etc., the defendant Chris Mendolia appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated February 27, 2009, as denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

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.

STEVEN W. FISHER, J.P., MARK C. DILLON, THOMAS A. DICKERSON and ARIEL E. BELEN, JJ.

(Index No. 00753/05)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

Viewing the evidence in the light most favorable to the plaintiffs and the defendant Keith Falko, as administrator of the estate of Robert F. Falko, the defendant Chris Mendolia failed to establish his prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Under the circumstances, triable issues of fact exist as to whether Mendolia caused the defendant Keith Falko's decedent to flee in fear of being chased by Mendolia, and whether that conduct was a proximate cause of the accident. Since Mendolia failed to meet his prima facie burden, we need not review the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Accordingly, the Supreme Court properly denied Mendolia's motion for summary judgment dismisssing the complaint and all cross claims insofar as asserted against him.

FISHER, J.P., DILLON, DICKERSON and BELEN, JJ., concur.

20100413

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