| Jackson v Tide Way Homes, Inc. |
| 2009 NY Slip Op 03868 [62 AD3d 754] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Jermaine Jackson, Respondent, v Tide Way Homes, Inc.,Defendant and Third-Party Plaintiff-Respondent. Angel Associates, Inc., Doing Business asStairbuilders By A&A, Inc., Also Known as Stairbuilders by B&A, Inc., Defendant andThird-Party Defendant-Appellant, et al., Defendant. |
—[*1] Rosenberg & Gluck, LLP, Holtsville, N.Y. (Michael V. Buffa of counsel), forplaintiff-respondent. John P. Humphreys, Melville, N.Y. (David R. Holland of counsel), for defendant third-partyplaintiff-respondent.
In an action to recover damages for personal injuries, the defendant and third-partydefendant Angel Associates, Inc., doing business as Stairbuilders By A&A, Inc., also Known asStairbuilders by B&A, Inc., appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Jones, J.), dated November 26, 2007, as denied that branch ofits motion which was for summary judgment dismissing the cause of action alleging negligenceand all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff allegedly was injured when a staircase he was ascending collapsed. At the timeof the accident, he was installing tiles in a house that was part of a new housing development. Hecommenced this action against, inter alia, the defendant and third-party defendant AngelAssociates, Inc., [*2]doing business as Stairbuilders By A&A,Inc., also known as Stairbuilders by B&A, Inc. (hereinafter Stairbuilders), the manufacturer ofthe staircase, asserting causes of action to recover damages for, inter alia, negligence.
The Supreme Court correctly denied that branch of Stairbuilders' motion which was forsummary judgment dismissing the negligence cause of action insofar as asserted against it. Insupport of its motion, Stairbuilders failed to establish, prima facie, that there was no defect in themanufacturing of the stairs, or, if there was a defect, that it was not a proximate cause of thealleged damages (see Galassa v LizdaRealty, Ltd., 18 AD3d 809, 811 [2005]).
Stairbuilders' argument that evidence was spoliated was raised for the first time in its replypapers, and therefore is not properly before this Court (see Costello v Zaidman, 58 AD3d 593 [2009]; LaFemina v LaFemina, 57 AD3d856 [2008]; Murphy v Town ofHempstead, 56 AD3d 631 [2008]; Johnston v Continental Broker-Dealer Corp.,287 AD2d 546 [2001]).
Stairbuilders' remaining contentions are without merit. Fisher, J.P., Miller, Chambers andAustin, JJ., concur. [See 2007 NY Slip Op 33830(U).]