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O'Toole v. City of Yonkers

Supreme Court of New York, Second Department

February 13, 2014

Marianna T. O'Toole, etc., plaintiff-respondent,
v.
City of Yonkers, et al., defendants, Getty Square Realty, LLC, defendant third-party plaintiff-appellant; North Broadway Phones, Inc., defendant third-party defendant-respondent, et al., third-party defendant. Index No. 30278/09

Thomas M. Bona, P.C., White Plains, N.Y. (Stephanie Bellantoni and Michael Flake of counsel), for defendant third-party plaintiff- appellant.

Scott Baron & Associates, P.C., Howard Beach, N.Y. (W. Bradford Bernadt and Michael S. Warycha of counsel), for plaintiff- respondent.

Goergen, Manson & McCarthy, Middletown, N.Y. (David B. Manson and James McCarthy of counsel), for defendant third-party defendant- respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered June 13, 2012, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it or, in the alternative, for summary judgment on the seventh cause of action in its third-party complaint insofar as asserted against the third-party defendant North Broadway Phones, Inc.

ORDERED that the appeal from so much of the order as denied that branch of the motion which was for summary judgment on the seventh cause of action in the third-party complaint against the third-party defendant North Broadway Phones, Inc., is dismissed as academic in light of our determination on the appeal from the remainder of the order; and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, and that branch of the motion of the defendant third-party plaintiff which was for summary judgment dismissing the complaint insofar as asserted against it is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendant third-party plaintiff.

The pertinent background facts are set forth in our determination of a prior appeal (see O'Toole v City of Yonkers, 107 A.D.3d 866). Here, the defendant third-party plaintiff, Getty Square Realty, LLC (hereinafter Getty Square), established its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous condition nor caused it by use of the subject metal doors leading to the basement (see id. at 867-868; Morelli v Starbucks Corp., 107 A.D.3d 963, 964-965). In opposition, the plaintiff failed to raise a triable issue of fact (see Morelli v Starbucks Corp., 107 A.D.3d at 965).

The plaintiff's remaining contention is without merit.

Accordingly, that branch of Getty Square's motion which was for summary judgment dismissing the complaint insofar as asserted against it should have been granted.

BALKIN, J.P., CHAMBERS, LOTT and HINDS-RADIX, JJ., concur.


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