GRECO v. POSILLICO

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

Steven GRECO, et al., Respondents, v. Joseph D. POSILLICO, et al., Defendants third-party Plaintiffs, J.D. Posillico, Inc., Appellant;  Chipco Construction and Contracting, third-party Defendant.

Decided: January 28, 2002

DAVID S. RITTER, ACTING P.J., NANCY E. SMITH, THOMAS A. ADAMS and BARRY A. COZIER, JJ. Martyn, Toher, Esposito & Martyn, Mineola, N.Y., (Joseph S. Holotka of counsel), for appellant.

In an action to recover damages for personal injuries, etc., the defendant J.D. Posillico, Inc., appeals from so much of an amended order of the Supreme Court, Nassau County (Segal, J.), dated January 2, 2001, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the amended order is affirmed insofar as appealed from, without costs or disbursements.

The injured plaintiff (hereinafter the plaintiff), an employee of the third-party defendant, Chipco Construction and Contracting (hereinafter Chipco), was injured while working on a construction project at the home of the defendants Joseph D. Posillico and Marie Posillico.   At his deposition, the plaintiff testified that his activities, as well as Chipco's work in general, were closely supervised by an employee of the appellant, J.D. Posillico, Inc. The appellant denied that it was involved in the project.

“It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate” (Heller v. Trustees of Town of E. Hampton, 166 A.D.2d 554, 555, 560 N.Y.S.2d 836;  see, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068;  Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776).   Accordingly, the Supreme Court correctly concluded that the appellant was not entitled to summary judgment since there are issues of fact as to whether it was controlling the work at the site when the plaintiff was injured (see, Rizzuto v. Wenger Contracting Co., 91 N.Y.2d 343, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Miranda v. City of New York, 281 A.D.2d 403, 721 N.Y.S.2d 391).

ORDERED that the motion is denied.

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