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SIMMONS v. SACCHETTI

15 N.Y.3d 797 (2010)

934 N.E.2d 877

908 N.Y.S.2d 144

SAPPHIRE SIMMONS, an Infant, by Her Mother and Natural Guardian, ROSEMARY SIMMONS, et al., Appellants, v. VITO SACCHETTI et al., Respondents, et al., Defendant.

Court of Appeals of New York.

Decided August 31, 2010.

Attorney(s) appearing for the Case

Law Offices of Arnold E. DiJoseph, P.C., New York City ( Arnold E. DiJoseph, III , of counsel), for appellants.

Law Office of Max W. Gershweir, New York City ( Max W. Gershweir of counsel), for Vito Sacchetti and another, respondents.

Molod Spitz & DeSantis, P.C., New York City ( Marcy Sonneborn of counsel), for Ambassador Fuel and Oil Burner Corp., respondent.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains ( Debra A. Adler of counsel), for F&B Fuel Oil Co., Inc., respondent.

Stuart W. Lawrence , New York City, for Met Council, Inc. and another, amici curiae.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be modified, without costs, by denying the motion of defendants Vito Sacchetti and TMS Management Company for summary judgment in the entirety and the motion of defendant Ambassador Fuel and Oil Burner Corp. insofar as it sought to dismiss the cross claims against it and, as so modified, affirmed.

Triable issues of fact exist as to whether defendants Sacchetti and TMS negligently...

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