RENTZ v. B.H.N.V. Sales Corp., d/b/a Italy Department Store, appellant. (1999)

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

Larry RENTZ, respondent, v. Michael S. MODELL, defendant, B.H.N.V. Sales Corp., d/b/a Italy Department Store, appellant.

Decided: June 21, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and HOWARD MILLER, JJ.

Arlene Zalayet, Mineola, N.Y., for appellant. Pulvers, Pulvers, Thompson & Kutner, P.C., New York, N.Y. (Amy Klauber of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant B.H.N.V. Sales Corp., d/b/a Italy Department Store appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated November 9, 1998, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642). We agree with the Supreme Court that the appellant failed to demonstrate a prima facie showing of entitlement to judgment as a matter of law.

MEMORANDUM BY THE COURT.

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