McFarland v. American Oxygen Co. — 90 A.D.3d 866

Majority

p. 866

Jeffrey G. McFarland, Respondent, et al., Plaintiff, v American Oxygen Company, Defendant, and Tri-Weld Industries, Inc., Appellant. (And a Third-Party Action.) (And Another Title.)

[934 NYS2d 718]

The Supreme Court properly denied that branch of the motion of the defendant Tri-Weld Industries, Inc. (hereinafter TriWeld), which was for summary judgment dismissing the complaint insofar as asserted against it by the plaintiff Jeffrey G. McFarland. In response to Tri-Weld’s prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), McFarland raised a triable issue of fact through the submission of his expert’s affidavit (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Angiolillo, J.E, Hall, Austin and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op 3301KU).]

Cases cited

Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 p. 866
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 p. 866