Smalls v. Aji Industries, Inc.

• Decision Date: 12 February 2008
• Docket Number: 13.
• Citation: 883 N.E.2d 350,10 N.Y.3d 733
• Parties: Markking SMALLS, Appellant-Respondent, v. AJI INDUSTRIES, INC., et al., Respondents, and Jahkim A. Jenkins et al., Respondents-Appellants.
• Court: New York Court of Appeals Court of Appeals

883 N.E.2d 350

10 N.Y.3d 733

Markking SMALLS, Appellant-Respondent, v.AJI INDUSTRIES, INC., et al., Respondents, and Jahkim A. Jenkins et al., Respondents-Appellants.

13.

Court of Appeals of New York.

February 12, 2008.

Crasto & Associates, P.C., Howard Beach (Carol L. Schlitt and Anthony C. Crasto of counsel), for appellant-respondent.

Buratti, Kaplan, McCarthy & McCarthy, Yonkers (John C. Buratti and Julie M. Sherwood of counsel), for respondents-appellants.

Downing & Peck, P.C., New York City (John M. Downing, Jr., of counsel), for respondents.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

At 1:40 a.m. on December 14, 2001, Jahkim A. Jenkins, a novice driver, was operating a vehicle owned by his sister, Christchelle Smalls, when he misjudged a lefthand turn from Randall Avenue onto Zerega Avenue in New York City, lost control of the automobile, and struck a parked dumpster owned by AJI Industries, Inc.Markking Smalls, a passenger in the vehicle, allegedly suffered "serious injury" within the meaning of the No-Fault Law as a result (seeInsurance Law § 5102[d]).

Markking Smalls subsequently sued AJI, Jenkins and Christchelle Smalls to recover for noneconomic loss and such other damages as he might be entitled to under the no-fault regime.As relevant to this appeal, he alleged that AJI "negligently maintain[ed] . . . [and] unlawfully situat[ed]" the dumpster "on public roadways" by "placing [it] on public roadways without any reflection tape, cones, triangles or other safety de-vices."AJI moved for summary judgment dismissing the complaint.Supreme Court denied the motion, but the Appellate Division reversed, with two Justices dissenting.

"As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers"(Alvarez v. Prospect Hasp.,68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572[1986][citations omitted and emphasis added]).In order to make out a prima facie case on its motion, AJI was required to show that the dumpster was located neither in a driving lane on Zerega Avenue nor in the zebra-striped safety zone where parking was not...