Admiral Indemnity Company, etc., Plaintiff–Respondent, v. Derek Sudan, Defendant–Appellant.

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

Admiral Indemnity Company, etc., Plaintiff–Respondent, v. Derek Sudan, Defendant–Appellant.

4662

Decided: March 29, 2011

Tom, J.P., Sweeny, Catterson, Acosta, Manzanet–Daniels, JJ. Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant. Wenig & Wenig, New York (Alan Wenig of counsel), for respondent.

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Order, Supreme Court, New York County (Judith J. Gische, J.), entered September 17, 2010, denying defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

This subrogation action arises out of property damage to the building located at 376 Broadway, New York, New York, owned by Mandarin Plaza Condominium, plaintiff's subrogor, caused by a leaking toilet hose in apartment 7E, owned by defendant.   Defendant seeks dismissal of the complaint, claiming that he had no notice of any defect, and therefore cannot be held liable for the resulting damages.   However, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ).   Here, defendant failed to make a prima facie showing of entitlement to summary dismissal of the complaint.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK