Majority
As the Supreme Court reviewed the merits on the plaintiffs’ motion for leave to reargue, the court, in effect, granted reargument and adhered to its original determination. Therefore, the order dated November 25, 2008, made upon reargument, is appealable (see Matter of Mattie M. v Administration for Children’s Servs., 48 AD3d 392 , 393 [2008]; McNeil v Dixon, 9 AD3d 481 [2004]).
The defendant established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it did not create and did not have actual or constructive notice of the presence of two raised or popped screws, which allegedly caused plaintiff Joseph Stile to Ml on a new “Y” dock of the defendant’s marina.
The plaintiffs, in response to the defendant’s prima facie showing, failed to raise a triable issue of fact (see Yarborough v City of New York, 28 AD3d 650 , 651 [2006], affd 10 NY3d 726
Cases cited
- Mattie M. v. Administration for Children's Services 48 AD3d 392 at 393 p. 707
- McNeil v. Dixon 9 AD3d 481 p. 707
- Yarborough v. City of New York 28 AD3d 650 at 651 p. 707
- Yarborough v. City of New York 10 NY3d 726 p. 707
- Dennehy-Murphy v. Nor-Topia Service Center, Inc. 61 AD3d 629 p. 708
- Alvarez v. Prospect Hospital 68 NY2d 320 p. 708