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

Martha AMORES, Appellant, v. 37-06 81ST STREET REALTY CORP., Respondent.

Decided: October 30, 2000

GUY JAMES MANGANO, P.J., SONDRA MILLER, LEO F. McGINITY, DANIEL F. LUCIANO and NANCY E. SMITH, JJ. Rimland & Associates (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellant. John J. Feeley, New York, N.Y. (Eugene Guarneri of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated October 8, 1999, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant established its prima facie entitlement to judgment as a matter of law by presenting sufficient documentary evidence that it was not the owner of the subject property on the date the injury occurred (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Woroniecki v. Tzitzikalakis, 255 A.D.2d 509, 680 N.Y.S.2d 606).   In opposing the motion, the plaintiff argued that an issue of fact existed because the deed for the subject property was not properly recorded.   However, the evidence established that title had passed from the defendant, regardless of the failure of the County Clerk to properly index the deed divesting the defendant of its interest in the property.   Therefore, the Supreme Court properly granted the defendant's motion for summary judgment (see, Woroniecki v. Tzitzikalakis, supra;  Riner v. Texaco, Inc., 222 A.D.2d 571, 635 N.Y.S.2d 658;  see also, Real Property Law § 291).


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