84093 08 v. PA 161 LLC (2011)

Supreme Court, Appellate Division, First Department, New York.

Bobby Edwards, Plaintiff–Respondent, 84093/08 v. Acadia–PA 161 st Street LLC, Defendant–Appellant. [And A Third Party Action]

4879

Decided: April 26, 2011

Mazzarelli, J.P., Renwick, DeGrasse, Freedman, Richter, JJ.

Eustace & Marquez, White Plains (Heath A. Bender of counsel), for appellant. Keogh Crispi, P.C., New York (Pat James Crispi of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 8, 2010, which, in an action for personal injuries, denied defendant/third-party plaintiff's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Defendant failed to establish its entitlement to judgment as a matter of law (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). In support of the motion, defendant submitted, inter alia, plaintiff's deposition testimony wherein he stated that he cut his finger on the jagged edge of a metal paper towel dispenser in the bathroom of defendant's building. Although the burden did not shift to plaintiff to raise a triable issue of fact (id.), it is noted that contrary to defendant's contention, plaintiff's affidavit, the supervisor's report and the hospital record are all consistent with the account plaintiff provided at his deposition (cf. Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320 [2000] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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