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Cetoute v. Action Carting Environmental, Inc.

Supreme Court of New York, Second Department

September 18, 2013

Epson Cetoute, plaintiff,
v.
Action Carting Environmental, Inc., et al., appellants, Calvin Cunningham, et al., respondents. Index No. 19633/09

Edward Garfinkel (McGaw, Alventosa & Zajac, Jericho, N.Y. [Joseph Horowitz and Dawn C. Desimone], of counsel), for appellants.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Stacy R. Seldin of counsel), for respondents.

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, RUTH C. BALKIN, JOHN M. LEVENTHAL, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Action Carting Environmental, Inc., and Julian G. Estupinan appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated March 2, 2012, as granted the motion of the defendants Calvin Cunningham and Sainfa Destine, in effect, for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendants Calvin Cunningham and Sainfa Destine which was for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as the appellants are not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 A.D.3d 144, 156); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendants Calvin Cunningham and Sainfa Destine.

The defendants Calvin Cunningham and Sainfa Destine established, prima facie, their entitlement to judgment as a matter of law dismissing all cross claims insofar as asserted against them by submitting the deposition testimony of the parties, which demonstrated that Destine's actions were not a proximate cause of the accident (see Strickland v Tirino, 99 A.D.3d 888, 890; Franco v Breceus, 70 A.D.3d 767, 769; Katz v Masada II Car & Limo Serv., Inc., 43 A.D.3d 876, 877). In opposition, the defendants Action Carting Environmental, Inc., and Julian G. Estupinan failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320). Accordingly, the Supreme Court properly granted that branch of Cunningham and Destine's motion which was, in effect, for summary judgment dismissing all cross claims insofar as asserted against them.

MASTRO, J.P., SKELOS, BALKIN and LEVENTHAL, JJ., concur.


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