Mondello v. Distefano, 2003-10385.
Decision Date | 28 March 2005 |
Docket Number | 2003-10385.,2005-02174. |
Parties | SALVATORE MONDELLO, Appellant, v. DOMENICA DiSTEFANO et al., Defendants, and SOUTHGATE AT BAR HARBOUR HOMEOWNERS ASSOCIATION, INC., Respondent. |
Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the appellant.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff allegedly was injured when he slipped and fell on ice in a driveway maintained by the defendant Southgate At Bar Harbour Homeowner's Association, Inc. (hereinafter Southgate). The Supreme Court granted Southgate's motion for summary judgment, finding that there was no evidence that Southgate "created the dangerous condition or had actual or constructive notice thereof." We reverse.
As the party seeking summary judgment, Southgate had the burden of establishing its prima facie entitlement to judgment as a matter of law, and was required to do so by affirmatively demonstrating the merit of its claim or defense, rather...
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