DELAROSA v. Roberto Salazar, et al., Appellants.

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

Benicia DELAROSA, Individually and as Mother and Natural Guardian of Cynthia Melo, an Infant, et al., Respondents, v. Guillermo VALLEJO, et al., Defendants-Respondents, Roberto Salazar, et al., Appellants.

Decided: November 24, 1997

Before BRACKEN, J.P., and PIZZUTO, ALTMAN and KRAUSMAN, JJ. Caulfield, Heller, Harris & Ryan, New York City (Carol R. Finocchio, of counsel), for appellants. Litman & Litman, P.C., New York City (Jeffrey E. Litman, of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants Roberto Salazar and Takos & K Electric Company appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated April 4, 1997, as denied their motion pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting therefrom the provision denying those branches of the appellants' motion which were for summary judgment dismissing the second and third causes of action and substituting therefor a provision granting those branches of the motion;  as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.

The plaintiffs have raised a triable issue of fact (see, CPLR 3212[b] ) as to whether the accident was caused by the appellants' negligence.   However, in light of the plaintiffs' concession that the infant plaintiff did not incur any damages as a result of the accident, the cause of action asserted by her should be dismissed, as should the derivative action asserted by her mother.

MEMORANDUM BY THE COURT.

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