Kwas v. Long Island Rail Road (231 A.D.2d 686, 1996)

In an action to recover damages for personal injuries, the defendant appeals (1) from an order of the Supreme Court, Queens County (Milano, J.), dated August 9, 1995, which granted the plaintiff’s motion for partial summary judgment on the issue of liability, and (2) as limited by its brief, from so much of an order of the same court, dated August 31, 1995, as, upon reargument, adhered to the prior determination.

Ordered that the appeal from the order dated August 9, 1995, is dismissed, as that order was superseded by the order dated August 31, 1995, made upon reargument; and it is further,

Ordered that the order dated August 31, 1995, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The Supreme Court properly granted the plaintiff’s motion for partial summary judgment on the issue of liability. After the plaintiff made out a prima facie case for partial summary judgment, the defendant failed to proffer sufficient evidence to establish the existence of a material issue of fact (see, Zucker man v City of New York, 49 NY2d 557). O’Brien, J. P., Joy, Friedmann and Krausman, JJ., concur.