Bin Gu, respondent, v. RD LLC

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

Bin Gu, respondent, v. Palm Beach Tan, Inc., et al., defendants third third-party plaintiffs/fourth third-party plaintiffs, et al., defendant third-party plaintiff, RD Management LLC, et al., defendants, New York Connecticut Development Corp., defendant third- party defendant/second third-party plaintiff/third third-party defendant;  Smart Choice of New York, Inc., second third-party defendant/fourth third- party defendant-appellant.

2010-01377 (Index No. 1032/07)

Decided: February 22, 2011

WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN JEFFREY A. COHEN, JJ. Caesar & Napoli, New York, N.Y. (Robert Stein of counsel), for respondent. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for defendants RD Management, LLC, and FB Mt. Kisco Owner, LLC.

Argued-January 7, 2011

DECISION & ORDER

Marks, O'Neill, O'Brien & Courtney, P.C., Elmsford, N.Y. (Brian Meissner of counsel), for second third-party defendant/fourth third-party defendant-appellant.

In an action to recover damages for personal injuries, the second third-party defendant/fourth third-party defendant, Smart Choice of New York, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flaherty, J.), entered December 3, 2009, as denied that branch of its motion which was for summary judgment dismissing the cause of action in the amended complaint alleging a violation of Labor Law § 240(1).

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

The Supreme Court correctly denied that branch of the motion of the second third-party defendant/fourth third-party defendant, Smart Choice of New York, Inc., which was for summary judgment dismissing the cause of action in the amended complaint alleging a violation of Labor Law § 240(1), because triable issues of fact exist as to whether the plaintiff's alleged conduct was the sole proximate cause of the subject accident, for the reasons stated in Bin Gu v. Palm Beach Tan, Inc., ( AD3d [Appellate Division Docket No. 2010-00302;  decided herewith] ).

MASTRO, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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