| Eum v Stephens |
| 2012 NY Slip Op 01652 [93 AD3d 632] |
| March 6, 2012 |
| Appellate Division, Second Department |
| Sera Eum et al., Respondents, v Charles W.D. Stephens etal., Appellants. |
—[*1] Yohan Choi, Flushing, N.Y. (Susan R. Nudelman of counsel), for respondents.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (F. Rivera, J.), dated November 4, 2010, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On May 30, 2006, the plaintiffs were driving on the Long Island Expressway behind aroll-off dump truck owned by the defendant Arma Scrap Metal Co., Inc., and operated by thedefendant Charles W.D. Stephens (hereinafter the defendant driver), when one of the tires on thetruck blew out. Although the plaintiffs' vehicle did not make contact with the truck or any othervehicle, the plaintiffs alleged that they sustained injuries from, among other things, the impact ofthe rubber from the blown tire striking their car. Subsequently, the plaintiffs commenced thisaction against the defendants alleging that the accident was due to the defendants' negligentmaintenance of the subject truck. After discovery, the defendants moved for summary judgmentdismissing the complaint. The Supreme Court denied the motion. The defendants appeal and weaffirm.
The defendants failed to meet their prima facie burden of establishing their entitlement tojudgment as a matter of law, as they failed to demonstrate that their maintenance of the truck'stires was reasonable under all of the circumstances (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; Castro v SalemTruck Leasing, Inc., 63 AD3d 1095 [2009]). Since the defendants failed to satisfy theirprima facie burden, denial of their motion was required without regard to the sufficiency of theplaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Accordingly, the defendants' motion was properly denied. Angiolillo, J.P.,Dickerson, Hall and Sgroi, JJ., concur. [Prior Case History: 29 Misc 3d 1225(A), 2010 NYSlip Op 51999(U).]