Birnbaum v. Constanza

In an action to recover damages for personal injuries, the defendant Jayne A. Spadaro appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated February 26, 2004, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her.

Ordered that the order is affirmed, with costs.

The appellant failed to establish her entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Thus, the burden never shifted to the plaintiff to establish the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and the court need not consider the sufficiency of the papers in opposition to the motion (see Lesane v Tejada, 15 AD3d 358 [2005]; Roberts v Carl Fenichel Community Servs., Inc., 13 AD3d 511 [2004]; Kolosovskiy v Vitale, 7 AD3d 579 [2004]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]). Adams, J.P., S. Miller, Crane and Mastro, JJ., concur.