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Estate of Michael Unterweiser v. Town of Hempstead6/7/1999
Argued - April 26, 1999
OPINION OF THE COURT
In an action, inter alia, to recover damages for wrongful death, the defendant Dennis Noskin appeals from an order of the Supreme Court, Nassau County (Levitt, J.), dated September 28, 1998, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is affirmed, with costs.
The proponent of a motion for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324). The appellant failed to meet this burden, since material issues of fact exist regarding whether the letter dated February 25, 1991, that he sent to the Building Department of the Town of Hempstead, which erroneously states that he inspected the entire length of the roof soffit, and that a drainage problem had been corrected, was a contributing factor to the accident. Therefore, the appellant was not entitled to summary judgment (see, CPLR 3212 ), regardless of the insufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).
BRACKEN, J.P., THOMPSON, SULLIVAN, and FRIEDMANN, JJ., concur.
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