MIKHAYLO v. CHECHELNITSKIY

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

Vasiliy MIKHAYLO, et al., respondents, v. Yevgeniy CHECHELNITSKIY, et al., appellants, et al., defendant.

Decided: November 27, 2007

STEPHEN G. CRANE, J.P., ROBERT A. LIFSON, EDWARD D. CARNI, and RUTH C. BALKIN, JJ. Cullen & Dykman, LLP, Brooklyn, N.Y. (Kevin C. McCaffrey of counsel), for appellants. Borrell & Riso, LLP, Staten Island, N.Y. (John Riso of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants Yevgeniy Chechelnitskiy and Zinaida Genkina appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated September 12, 2006, as denied that branch of their motion which was for summary judgment dismissing the causes of action based on common-law negligence and violation of Labor Law § 200 insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the appellants' motion which was for summary judgment dismissing the causes of action based on common-law negligence and violation of Labor Law § 200 insofar as asserted against them because they failed to establish their prima facie entitlement to judgment as a matter of law dismissing these causes of action (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 438, 640 N.Y.S.2d 604).   In particular, they failed to establish that they lacked actual or constructive notice of the allegedly dangerous condition that caused the plaintiff Vasiliy Mikhaylo's injury (see Keating v. Nanuet Bd. of Educ., 40 A.D.3d 706, 708, 835 N.Y.S.2d 705).   Because the appellants failed to meet their prima facie burden, the sufficiency of the opposition papers need not be addressed (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).

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