Comack v. Vbk Realty Associates, Ltd.

• Decision Date: 19 February 2008
• Docket Number: 2007-00545.,2006-07881.
• Parties: KATHLEEN COMACK et al., Appellants, v. VBK REALTY ASSOCIATES, LTD., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

48 A.D.3d 611

852 N.Y.S.2d 370

2008 NY Slip Op 01489

KATHLEEN COMACK et al., Appellants, v. VBK REALTY ASSOCIATES, LTD., et al., Respondents.

2006-07881.

2007-00545.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 19, 2008.

In an action to recover damages for personal injuries, etc., the

plaintiffs appeal (1) from so much of an order of the Supreme Court, Nassau County (Martin, J.), entered July 7, 2006, as granted the motion of the defendants VBK Realty Associates, Ltd., Fred Von Bargen, and "Mary" Kelly, and those branches of the separate cross motions of the defendants Peter Hausman and Ed Zelenski, which were for summary judgment dismissing the complaint insofar as asserted against each of them, and (2), as limited by their brief, from so much of an order of the same court dated November 27, 2006, as denied that branch of their motion which was for leave to renew, and upon, in effect, granting that branch of their motion which was for reargument, adhered to its original determination.

Ordered that the appeal from the order entered July 7, 2006 is dismissed, as that order was superseded by so much of the order dated November 27, 2006 as was made upon reargument; and it is further,

Ordered that the order dated November 27, 2006 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The infant plaintiff was injured when he rode his bicycle off a 10-foot cliff, into which a nonfunctioning well house was embedded. The plaintiff had been riding down a sloped road when he went over a speed bump, which caused him to lose control of the bicycle and veer off the road onto a grassy area. He then ran over a garden hose, which diverted the path of the bicycle toward the cliff, and rode over the flat, exposed top of the well house, landing on the beach below. In its original order, the Supreme Court granted summary judgment to the moving defendants. In an order dated November 27, 2006 the Supreme Court denied that branch of the plaintiffs' motion which was for leave to renew, and, upon, in effect, granting that branch of the plaintiffs' motion which was for reargument, adhered to its original determination dismissing the complaint insofar as asserted against the respondents. We affirm the order made upon reargument insofar as appealed from.

"To establish a prima facie case of negligence, a plaintiff...