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SUSAN LYNN JOHNSON, ETC., ET AL., appellants, v. LEACH COMPANY, defendant third-party plaintiff-respondent; RONALD CARMODY, ET AL., third-party defendants, MACK TRUCKS, INC., third-party defendant-respondent.

DECISION ORDER

ORDERED that the appeal from so much of the order as granted the motion of the third-party defendant Mack Trucks, Inc., is dismissed, as the plaintiff is not aggrieved by that portion of the order ( see CPLR 5511); and it is further

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The defendant third-party plaintiff, Leach Company (hereinafter Leach), made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that any finding as to proximate cause would be based on mere speculation ( see Mazzone v. Lazaroff, 305 A.D.2d 558, 559; Johnson v. Sniffen, 265 A.D.2d 304; Scheer v. City of New York, 211 A.D.2d 778). In opposition, the plaintiffs failed to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557). Therefore, the Supreme Court properly granted Leach's motion for summary judgment dismissing the complaint.

ALTMAN, J.P., S. MILLER, KRAUSMAN and COZIER, JJ., concur.

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JOHNSON v. LEACH COMPANY
(Mar 29, 2004)