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Flynn v. Toys "R" Us, Inc.

31 A.D.3d 603 Court N.Y. App. Div. Decision date 2006-07-18 English

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p. 603
Cheryl Flynn, Plaintiff, v Toys “R” Us, Inc., Defendant and Third-Party Plaintiff-Respondent. Cintas Corporation, Third-Party Defendant-Appellant.
[819 NYS2d 537]

In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated October 29, 2004, which denied its motion for summary judgment dismissing the third-party complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.

p. 604
As the proponent of the motion for summary judgment, the third-party defendant, Cintas Corporation (hereinafter Cintas), met its initial burden of demonstrating, prima facie, its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]) by introducing its rental contract with the third-party plaintiff Toys “R” Us, Inc. (hereinafter Toys), which did not include an indemnification clause in favor of Toys or a requirement that it procure insurance coverage for Toys (see Esatto v Assumption of Blessed Virgin Mary R.C. Church, 192 AD2d 574 , 575 [1993]). Cintas further established, as a matter of law, that there was no defect in the floor mat it had delivered to Toys and that Cintas had no actual or constructive notice of any alleged defect (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).

In opposition to the motion, Toys failed to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 , 562 [1980]). Thus, the Supreme Court should have granted summary judgment to Cintas dismissing the third-party complaint.

In light of the foregoing, the parties’ remaining contentions have been rendered academic and need not be addressed on appeal. Schmidt, J.P., Krausman, Mastro and Covello, JJ., concur.

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