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Wilk v. Guthrie

Supreme Court of New York, Second Department

October 23, 2013

Alan B. Wilk, et al., respondents,
v.
Elaine Guthrie, appellant. Index No. 3831/10

Hodges Walsh & Slater, LLP, White Plains, N.Y. (Stephen H. Slater and Paul Svensson of counsel), for appellant.

Favata & Wallace, LLP, Garden City, N.Y. (William G. Wallace of counsel), for respondents.

RANDALL T. ENG, P.J., RUTH C. BALKIN, PLUMMER E. LOTT, SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Pineda-Kirwan, J.), entered July 3, 2012, which denied her motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint. The conflicting deposition testimony submitted in support of the motion revealed the existence of triable issues of fact as to the manner in which the accident occurred, and whether the defendant created the condition which caused the accident (see Willis v Galileo Cortlandt, LLC, 106 A.D.3d 730; Gagliardo v Orton, 95 A.D.3d 1275; Silverman v Johnson, 94 A.D.3d 860, 861; Molloy v Waldbaum, Inc., 72 A.D.3d 659, 660). Since the defendant thus failed to establish her prima facie entitlement to judgment as a matter of law, we need not examine the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Veltri v Solomon, 107 A.D.3d 699, 700).

ENG, P.J., BALKIN, LOTT and ROMAN, JJ., concur.


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