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Pinilla v City of New York

Pinilla v City of New York

Supreme Court of New York, Appellate Division, Second Department

February 10, 2016

2013-05631

Opinion

 [*774]  [**711] In an action to recover damages for personal injuries and wrongful death, (1) [**712]  the defendant Murtosa & Veiros, Inc., doing business as Sangria Tapas Bar & Restaurant, appeals, as limited by its brief, from so much of an order of the Supreme [*775]  Court, Queens County (Flug, J.), entered March 22, 2013, as denied that branch of its motion which was for summary judgment dismissing the cause of action asserted against it pursuant to General Obligations Law § 11-101 and granted that branch of the motion of the defendant [***2]  City of New York which was for summary judgment dismissing its cross claims insofar as asserted against the defendant City of New York, (2) the defendant Public Administrator, as temporary administrator of the estate of Martin Cadena, separately appeals, as limited by her brief, from so much of the order as granted the motion of the defendant City of New York for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and (3) the plaintiff cross-appeals, as limited by his brief, from so much of the order as granted the motion of the defendant City of New York for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the appeal by the Public Administrator, as temporary administrator of the estate of Martin Cadena, from so much of the order as granted those branches of the motion of the defendant City of New York which were for summary judgment dismissing the complaint and the cross claims of the defendant Murtosa & Veiros, Inc., doing business as Sangria Tapas Bar & Restaurant insofar as asserted against it is dismissed, as the Public Administrator, as temporary administrator of the estate of [***3]  Martin Cadena, is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 147, 904 NYS2d 132 [2010]); and it is further,

Ordered that the cross appeal by the plaintiff from so much of the order as granted that branch of the motion of the defendant City of New York which was for summary judgment dismissing all cross claims insofar as asserted is against it is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d at 147); and it is further,

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136 A.D.3d 774 *; 24 N.Y.S.3d 710 **; 2016 N.Y. App. Div. LEXIS 981 ***; 2016 NY Slip Op 00953 ****

 [****1]  Anthony Pinilla, as Administrator of the Estate of Yvette M. Villalba, Deceased, Respondent-Appellant, v City of New York, Respondent, and Public Administrator, as Temporary Administrator of the Estate of Martin Cadena, Deceased, et al., Appellants, et al., Defendants. (Index No. 7902/10)

Prior History: Pinilla v City of New York, 2013 N.Y. Misc. LEXIS 1056, 2013 NY Slip Op 30521(U) (N.Y. Sup. Ct., Mar. 19, 2013)

CORE TERMS

summary judgment, truck, cross claim, left lane, alcohol, administrator of an estate, cause of action, truck driver, highway

Torts, Types of Negligence Actions, Alcohol Providers, Dram Shop Acts, Transportation Torts, Motor Vehicles, Particular Actors, Circumstances, & Liabilities, Standards of Care, Reasonable Care, Sudden Emergencies, Proof, Evidence, Province of Court & Jury, Duty, Reasonable Care