| Fletcher v Westbury Toyota, Inc. |
| 2009 NY Slip Op 08176 [67 AD3d 730] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Gary Fletcher, Plaintiff, and Darlene Giammancheri,Respondent, v Westbury Toyota, Inc., et al., Appellants. |
—[*1] Muscarella & Deraimo (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D.Sweetbaum], of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the defendants Westbury Toyota,Inc., Sean A. Dennis, and Philip Stenger appeal, as limited by their brief, from so much of anorder of the Supreme Court, Nassau County (Parga, J.), dated October 21, 2008, as granted thecross motion of the plaintiff Darlene Giammancheri for summary judgment dismissing thecounterclaim for contribution asserted by the defendants Westbury Toyota, Inc., and Sean A.Dennis against her.
Ordered that the appeal by the defendant Philip Stenger is dismissed, as that defendant is notaggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
As the defendants Westbury Toyota, Inc., and Sean A. Dennis (hereinafter the defendants)correctly contend, the order appealed from erroneously characterized the plaintiff DarleneGiammancheri's cross motion for summary judgment dismissing the counterclaim forcontribution against her as being "without opposition." The record demonstrates that thedefendants submitted timely papers containing admissible evidence in opposition to the motion,and the order [*2]recited those opposition papers as having been"used on the motion" (CPLR 2219 [a]).
Similarly, the defendants correctly contend that Giammancheri improperly advanced herfactual contention regarding proximate cause for the first time on this appeal, since she neverraised that proximate cause argument in support of her cross motion in the Supreme Court(see Bingham v New York City Tr. Auth., 99 NY2d 355, 359 [2003]; Matter of Mercury Ins. Group vOcana, 46 AD3d 561, 562 [2007]; Weber v Jacobs, 289 AD2d 226, 227 [2001];Fresh Pond Rd. Assoc. v Estate of Schacht, 120 AD2d 561 [1986]; Orellano vSamples Tire Equip. & Supply Corp., 110 AD2d 757, 758 [1985]).
However, the Supreme Court properly granted Giammancheri's cross motion for summaryjudgment dismissing the counterclaim for contribution. Giammancheri sustained her burden ofestablishing prima facie that she was under no legal duty to replace the inoperable airbag in hervehicle (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]), and the defendants failed to raise a triable issue of fact as to any common-law orstatutory authority for the existence of such a duty on her part to rebut this showing (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In the absence of anytriable issue of fact as to such a duty, there was no negligence by Giammencheri upon which thedefendants' counterclaim could be premised and summary judgment was properly granted toGiammancheri. Rivera, J.P., Florio, Miller and Hall, JJ., concur.