Komonaj v Curanovic, 2011 NY Slip Op 09003 [90 AD3d 505]

Dcmbr 15, 2011

Appellate Division, First Department

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Krinsky & Musumeci, New York (James E. Gear of counsel), for appellants.

Joseph T. Mullen & Associates, New York (Allan L. Brenner of counsel), for respondents.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or about March 9, 2010, which, to the extent appealed from, denied individual defendants Kola Curanovic and Gjon Vcaj’s motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The infant plaintiffs allegedly suffered injuries as a result of exposure to lead-based paint in their apartment in the building owned by the corporate defendant. Supreme Court properly denied the motion for summary judgment dismissing the complaint as against the individual defendants, who are officers and employees of the corporate defendant. In moving for summary judgment, the individual defendants failed to present evidence that, if uncontroverted, would have established that they did not personally participate in malfeasance or misfeasance constituting an affirmative tortious act ( see Peguero v 601 Realty Corp. , 58 AD3d 556 , 558-559 [2009]; Espinosa v Rand , 24 AD3d 102 , 102 [2005]). In the absence of such evidence, the individual defendants failed to make a prima facie showing that they were entitled to judgment as a matter of law, and this failure required the denial of their summary judgment motion regardless of the sufficiency of the opposing papers ( see Ayotte v Gervasio , 81 NY2d 1062 [1993]).

We have considered the individual defendants’ remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Friedman, Acosta and Freedman, JJ..