Erkocaj v. Port Authority — 18 A.D.3d 423

Majority

p. 423

Edmond Erkocaj et al., Appellants, v Port Authority of New York and New Jersey et al., Respondents.

[795 NYS2d 891]

— In an action to recover damages for personal injuries, etc.,

p. 424

the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated February 18, 2004, as granted that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment dismissing the first cause of action is denied, and that cause of action is reinstated.

As the parties moving for summary judgment, the defendants had the burden of tendering sufficient evidence to demonstrate the absence of any triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 , 324 [1986]). On the facts of this case, the defendants failed to meet this burden. Since the defendants failed to sustain their burden, it is unnecessary to consider the adequacy of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 , 438 [1996]). Accordingly, the Supreme Court erred in granting that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action. H. Miller, J.P., Krausman, Crane and Fisher, JJ., concur.

Cases cited

Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 at 324 p. 424
Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 at 853 p. 424
Mariaca-Olmos v. Mizrhy 226 AD2d 437 N.Y. App. Div. 1996-04-08 at 438 p. 424