Lawson v Rutland Nursing Home, Inc.
2009 NY Slip Op 06166 [65 AD3d 572]
August 11, 2009
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, September 30, 2009


Jernine Lawson, Plaintiff,
v
Rutland Nursing Home, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents. Copy Right, Inc., Third-Party Defendant-Appellant.

[*1] James J. Toomey, New York, N.Y. (Evy L. Kazansky and Denise L. Thomas of counsel), for third-party defendant-appellant.

Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, New York, N.Y. (Joseph C. Bellard of counsel), for defendants third-party plaintiffs-respondents.

In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Kings County (Balter, J.), dated June 4, 2008, which denied its motion for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed, with costs.

The third-party defendant (hereinafter the appellant) made a prima facie showing of entitlement to judgment as a matter of law dismissing the third-party complaint (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). However, in opposition to the motion, the defendants third-party plaintiffs (hereinafter the respondents) raised triable issues of fact. Among other things, they submitted the deposition testimony of the appellant's former employee, which presented inconsistencies with the deposition testimony of the plaintiff on material issues. Thus, the respondents raised triable issues regarding the credibility of both witnesses that should be resolved by the trier of fact (see Artoglou v Gene Scappy Realty Corp., 57 AD3d 460, 462-463 [2008]; Makaj v Metropolitan Transp. Auth., 18 AD3d 625, 626-627 [2005]; Kolivas v Kirchoff, 14 AD3d 493 [2005]).

The appellant's remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the appellant's motion for summary judgment dismissing the third-party complaint. Prudenti, P.J., Miller, Covello and Austin, JJ., concur.