MONTGOMERY v. BURLINGTON COAT FACTORY OF TEXAS INC LLC (2023)

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

Alice MONTGOMERY, Plaintiff-Appellant, v. BURLINGTON COAT FACTORY OF TEXAS, INC., Excel Building Services Corporation, Also Known as Excel Building Services, LLC, and T2h Syracuse, Inc., doing business as Helping Hands, Defendants-Respondents.

396 Decided: June 09, 2023

PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, JJ.

VINAL & VINAL, P.C., BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR PLAINTIFF-APPELLANT. SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR DEFENDANT-RESPONDENT BURLINGTON COAT FACTORY OF TEXAS, INC. LAW OFFICES OF SANTACROSE, FRARY, TOMKO, DIAZ-ORDAZ & WHITING, BUFFALO (RICHARD S. POVEROMO OF COUNSEL), FOR DEFENDANT-RESPONDENT EXCEL BUILDING SERVICES CORPORATION, ALSO KNOWN AS EXCEL BUILDING SERVICES, LLC. LIPPMAN O'CONNOR, BUFFALO (ROBERT H. FLYNN OF COUNSEL), FOR DEFENDANT-RESPONDENT T2H SYRACUSE, INC., DOING BUSINESS AS HELPING HANDS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order insofar as it granted defendants’ motions seeking summary judgment dismissing the second amended complaint against them. We affirm for reasons stated in the decision at Supreme Court. We write only to note that, contrary to the court's determination, it was not required under 22 NYCRR 202.8-g (former [c]) to deem the assertions in two defendants’ statements of material facts admitted based on plaintiff's failure to controvert them (see On the Water Prods., LLC v. Glynos, 211 A.D.3d 1480, 1481, 181 N.Y.S.3d 786 [4th Dept. 2022]). We nonetheless conclude that the court properly determined that defendants otherwise met their initial burden on their motions, and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).

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