Penna v. City of New York — 248 A.D.2d 692

Majority

p. 692

Thomas J. Penna, Respondent, v City of New York et al., Defendants, and Hyster Co., Appellant

[671 NYS2d 274]

—In Em action to recover damages for personal injuries, the defendant Hyster Co. appeals from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated April 29, 1997, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

Since the appellant made a prima facie showing that there was no defect in the product in question, the opponents of its cross motion for summary judgment were required to submit evidentiary facts by expert affidavit demonstrating the existence of a triable issue of fact (see, Powles v Wean United Corp., 126 AD2d 624 ). The opponents failed to do so, and the appellant’s motion should have been granted.

O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.