| McFarland v American Oxygen Co. |
| 2011 NY Slip Op 09286 [90 AD3d 866] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Jeffrey G. McFarland, Respondent, et al.,
Plaintiff, v American Oxygen Company, Defendant, and Tri-Weld Industries, Inc., Appellant. (And a Third-Party Action.) (And Another Title.) |
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Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmer of counsel),
for respondent.
In an action to recover damages for personal injuries, etc., the defendant Tri-Weld Industries, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.), entered October 21, 2010, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it by the plaintiff Jeffrey G. McFarland.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the motion of the defendant Tri-Weld Industries, Inc. (hereinafter Tri-Weld), which was for summary judgment dismissing the complaint insofar as asserted against it by the plaintiff Jeffrey G. McFarland. In response to Tri-Weld's prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), McFarland raised a triable issue of fact through the submission of his expert's affidavit (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Angiolillo, J.P., Hall, Austin and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op 33011(U).]