| Sarafolean v Accomplice N.Y. |
| 2010 NY Slip Op 05748 [74 AD3d 1310] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Michael Sarafolean et al., Appellants, v Accomplice NewYork et al., Respondents, et al., Defendant. |
—[*1] Murtagh Cohen & Byrne, Rockville Centre, N.Y. (John E. Gray of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Kings County (Held, J.), entered July 22, 2008, which, upon anorder of the same court dated March 13, 2008, granting the motion of the defendants AccompliceNew York, Accomplice, Inc., Tom Salamon, and Elizabeth Sufott, also known as Betsy Sufott,for summary judgment dismissing the complaint insofar as asserted against those defendants, isin favor of those defendants and against them dismissing the complaint insofar as assertedagainst those defendants.
Ordered that the judgment is modified, on the law, by deleting the provision thereof in favorof the defendants Accomplice New York and Accomplice, Inc., and against the plaintiffsdismissing the complaint insofar as asserted against those defendants, that branch of the motionof the defendants Accomplice New York, Accomplice, Inc., Tom Salamon, and Elizabeth Sufott,also known as Betsy Sufott, which was for summary judgment dismissing the complaint insofaras asserted against the defendants Accomplice New York and Accomplice, Inc., is denied; as somodified, the judgment is affirmed, with costs to the plaintiffs, payable by the defendantsAccomplice New York and Accomplice, Inc., and the action is severed against the defendantsTom Salamon, Elizabeth Sufott, also known as Betsy Sufott, and Billy Beyrer, and the orderdated March 13, 2008, is modified accordingly.
On May 7, 2006 the plaintiff Michael Sarafolean (hereinafter the plaintiff) participated, as apaid customer, in a scavenger hunt as part of an interactive walking tour and show run byAccomplice, Inc., doing business as Accomplice New York (hereinafter Accomplice), suedherein as Accomplice New York and Accomplice, Inc. The defendants Tom Salamon andElizabeth Sufott, also known as Betsy Sufott, are officers of Accomplice. At one point in theshow, an actor employed by Accomplice furnished the plaintiff with a bicycle so that he couldmore quickly reach a destination in the scavenger hunt. The plaintiff testified at his depositionthat, as he rode the bicycle on the Brooklyn Bridge, he applied the brakes, they failed to operate,and he collided with a concrete barrier in his path, thereby causing him to sustain [*2]injuries.
Accomplice, Salamon, and Sufott (hereinafter collectively the defendants) moved forsummary judgment dismissing the complaint insofar as asserted against them on the ground,inter alia, that the accident was not caused by a defect in the brakes. In support of their motion,the defendants submitted evidence, including the plaintiff's deposition testimony and theaffidavit of an Accomplice employee, who averred that the brakes were working on May 7,2006, both when he rode the bicycle to the Brooklyn Bridge prior to the accident and away fromthe Brooklyn Bridge after the accident. The defendants further submitted the affidavit of anengineer who, upon examining the bicycle on March 30, 2007, opined that, despite damage tothe front of the bicycle from the accident, the rear brakes were functioning properly and capableof bringing the bicycle to a full stop under the conditions and speed at which the plaintiff hadbeen riding it.
The evidence submitted by the defendants failed to eliminate all triable issues of fact as towhether the brakes of the bicycle which Accomplice furnished the plaintiff were, in fact,defective. Accordingly, Accomplice failed to establish its prima facie entitlement to judgment asa matter of law dismissing the complaint insofar as asserted against it (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; cf. Tufano v Nor-Hgts. Serv. Ctr., Inc., 15 AD3d470, 471 [2005]; Breslin v Rij, 259 AD2d 458, 458-459 [1999]). Inasmuch asAccomplice failed to carry its prima facie burden, denial of that branch of the defendants' motionwhich was for summary judgment dismissing the complaint insofar as asserted againstAccomplice was required, without regard to the sufficiency of the plaintiffs' opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The defendants Salamon and Sufott, however, established their prima facie entitlement tojudgment as a matter of law dismissing the complaint insofar as asserted against them bysubmitting evidence that they did not act in their individual capacities or commit any tort outsidethe scope of their corporate capacities, and the plaintiffs, in opposition, failed to raise a triableissue of fact (see Bernstein v Starrett City, 303 AD2d 530, 532 [2003]). Accordingly, theSupreme Court properly awarded summary judgment to Salamon and Sufott dismissing thecomplaint insofar as asserted against them.
Accomplice's remaining contentions are without merit. Fisher, J.P., Angiolillo, Leventhaland Lott, JJ., concur.