| Brown v Demon Trucking, Inc. |
| 2013 NY Slip Op 01369 [104 AD3d 634] |
| March 6, 2013 |
| Appellate Division, Second Department |
| Sheila Brown, Respondent, v Demon Trucking,Inc., et al., Appellants, and Heineken USA, Inc., et al., Respondents, et al.,Defendant. |
—[*1] Goidel & Siegel, LLP (Andrew B. Siegel and Pollack, Pollack, Isaac & De Cicco,New York, N.Y. [Brian J. Isaac], of counsel), for plaintiff-respondent. DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel),for defendants-respondents Whitestone Citrus Corp., doing business as TropicanaProducts, Donna M. McDaid, and Michael Beck.
In an action to recover damages for personal injuries, etc., the defendants DemonTrucking, Inc., Terrence Jones, Phoenix Beverages, Inc., and Windmill DistributingCompany, L.P., appeal from so much of an order of the Supreme Court, Kings County(Martin, J.), dated May 25, 2011, as denied the motion of the defendants DemonTrucking, Inc., Terrence Jones, and Phoenix Beverages, Inc., for summary judgmentdismissing the complaint and all cross claims insofar as asserted against thosedefendants.
Ordered that the appeal by the defendant Windmill Distributing Company, L.P., isdismissed, as that defendant is not aggrieved 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 by the defendants DemonTrucking, Inc., Terrence Jones, and Phoenix Beverages, Inc.; and it is further,
Ordered that one bill of costs is awarded to the plaintiff and the defendantsWhitestone Citrus Corp., doing business as Tropicana Products, Donna M. McDaid, andMichael Beck, appearing separately and filing separate briefs, payable by the appellants.
The plaintiff's infant daughter (hereinafter the infant) allegedly was injured when shewas struck by a truck owned by the defendant Demon Trucking, Inc. (hereinafter DemonTrucking), and operated by the defendant Terrence Jones, an employee of the defendantPhoenix Beverages, Inc. (hereinafter Phoenix Beverages). The plaintiff commenced thisaction to recover damages, inter alia, [*2]for personalinjuries against, among others, Demon Trucking, Jones, and Phoenix Beverages.Thereafter, Demon Trucking, Jones, and Phoenix Beverages (hereinafter collectively themovants) moved for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them. In the order appealed from, the Supreme Court, interalia, denied the motion.
The movants failed to establish their prima facie entitlement to judgment as a matterof law, as they failed to eliminate triable issues of fact as to how the accident occurredand whether Jones had sufficient opportunity to avoid hitting the infant (see Parnes v Mitzy Transp., 44AD3d 918 [2007]; Judice v DeAngelo, 272 AD2d 583 [2000]). Since themovants failed to meet their prima facie burden, the Supreme Court properly denied themotion for summary judgment, and we need not consider the sufficiency of the paperssubmitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]; Creese v LongIs. Light. Co., 98 AD3d 708, 711 [2012]).
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Eng, P.J., Rivera, Lott and Miller, JJ., concur.