BRIAN COKENG plf-res, v. OGDEN CAP PROPERTIES, LLC defap

9337. BRIAN COKENG plf-res, v. OGDEN CAP PROPERTIES, LLC defap — Fixler & LaGattuta, LLP, New York (Paul F. LaGattuta III of counsel), for ap — Edward T. Chase, Mount Vernon, for res — Order, Supreme Court, New York County (Jeffrey Oing, J.), entered April 24, 2012, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint for lack of causation, or, alternatively, for an order scheduling a Frye hearing to examine the basis of the opinion of plaintiffs' expert epidemiologist/ toxicologist, or, in the further alternative, for preclusion of that expert's opinion, and upon preclusion, summary judgment dismissing plaintiffs' complaint, unanimously affirmed, without costs.

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9337. BRIAN COKENG plf-res, v. OGDEN CAP PROPERTIES, LLC defap — Fixler & LaGattuta, LLP, New York (Paul F. LaGattuta III of counsel), for ap — Edward T. Chase, Mount Vernon, for res — Order, Supreme Court, New York County (Jeffrey Oing, J.), entered April 24, 2012, which, insofar as appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the complaint for lack of causation, or, alternatively, for an order scheduling a Frye hearing to examine the basis of the opinion of plaintiffs’ expert epidemiologist/ toxicologist, or, in the further alternative, for preclusion of that expert’s opinion, and upon preclusion, summary judgment dismissing plaintiffs’ complaint, unanimously affirmed, without costs.

Defendants failed to make a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate all material issues of fact (see Lesocovich v. 180 Madison Ave. Corp., 81 NY2d 982, 985 [1993]). Notably, defendants advanced no affidavit from a toxicology or epidemiology expert, nor did they otherwise eliminate all material issues of fact regarding general and specific causation. Accordingly, the motion court correctly denied summary judgment to defendants “regardless of the sufficiency of the opposing papers” (Lesocovich, 81 NY2d at 985).

BRIAN COKENG plf-res, v. OGDEN CAP PROPERTIES, LLC defap

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