Lefferts v. Federated Department Stores, Inc.

Majority

p. 628

Candace Lefferts, Plaintiff, v Federated Department Stores, Inc., Doing Business as Macy’s, Defendant and Third-Party Plaintiff-Respondent. MG Concepts, Third-Party Defendant-Appellant; Fixture Perfect International, Third-Party Defendant-Respondent.

[791 NYS2d 452]—

In an action to recover damages for personal injuries, the third-party defendant MG Concepts appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 24, 2003, as denied its motion for summary judgment dismissing the third-party complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

In light of the differences between the deposition testimony of the witness produced on behalf of the appellant and the conclusory assertions later made by this witness in support of the appellant’s motion for summary judgment, and in light of all the other circumstances presented, the appellant failed to meet its burden of showing the absence of any triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Prudenti, P.J., S. Miller, Ritter and Goldstein, JJ., concur.

Cases cited

Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 p. 628
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 p. 628