Christopher Viola, appellant, v. Joseph Milo, defendant third-party plaintiff-respondent, et al., defendant;  Above All Carting, Inc., third-party defendant. (2010)

Argued-November 5, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated July 29, 2009, as, upon renewal, in effect, vacated so much of its prior order dated March 26, 2008, as denied that branch of the motion of the defendant Joseph Milo which was for summary judgment dismissing the complaint insofar as asserted against him, and thereupon granted that branch of the motion.

ORDERED that the order dated July 29, 2009, is reversed insofar as appealed from, with one bill of costs payable by the defendant third-party plaintiff and the third-party defendant, and, upon renewal, so much of the order dated March 26, 2008, as denied that branch of the motion of the defendant Joseph Milo which was for summary judgment dismissing the complaint insofar as asserted against him, is adhered to.

Upon renewal, the defendant Joseph Milo failed to establish his prima facie entitlement to judgment as a matter of law dismissing the complaint, alleging negligent placement of a dumpster, insofar as asserted against him (see generally Dery v. DeCostale Carting, 281 A.D.2d 508, 511;  Baker v. Sportservice Corp., 142 A.D.2d 991).   Therefore, this Court need not review the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851).

MASTRO, J.P., COVELLO, ANGIOLILLO and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court