Opinion
772 CA 01-02467
July 3, 2002.
Appeal from an order of Supreme Court, Oneida County (Tenney, J.), entered May 18, 2001, which granted the motions and cross motion of defendants for summary judgment dismissing the second supplemental complaint.
LAW OFFICES OF MARC JONAS, UTICA (RICHARD A. COHEN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
FELT EVANS, LLP, CLINTON (JAY G. WILLIAMS, III, OF COUNSEL), FOR DEFENDANT-RESPONDENT PENN TRAFFIC COMPANY, D/B/A P C FOODS.
SMITH, SOVIK, KENDRICK SUGNET, P.C., SYRACUSE (KRISTEN L. NORFLEET OF COUNSEL), FOR DEFENDANT-RESPONDENT BENDERSON DEVELOPMENT COMPANY, INC.
HARRIS BEACH LLP, HAMBURG (SCOTT M. PHILBIN OF COUNSEL), FOR DEFENDANT-RESPONDENT JAMES DEAN ENTERPRISES.
Before: PIGOTT, JR., P.J., GREEN, HURLBUTT, SCUDDER, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of the cross motion of defendant Benderson Development Company, Inc. seeking summary judgment dismissing the second supplemental complaint against it and reinstating the second supplemental complaint against it and as modified the order is affirmed without costs.
Memorandum:
Plaintiff commenced this action to recover damages for injuries she sustained when she allegedly slipped and fell on a patch of ice in the parking lot of a shopping plaza. Supreme Court properly granted the motion of defendant Penn Traffic Company, d/b/a P C Foods (Penn Traffic), seeking summary judgment dismissing the second supplemental complaint against it. Penn Traffic, a tenant in the shopping plaza, established its entitlement to judgment as a matter of law by demonstrating that it neither owned the parking lot nor assumed a duty to maintain it and thus owed no duty to plaintiff with respect to the condition of the parking lot ( see Falu v. 233 Assoc., 258 A.D.2d 342, 343; see also Orr v. Spring, 288 A.D.2d 663, 665). The court also properly granted that part of the motion of defendant James Dean Enterprises (Dean) seeking summary judgment dismissing the second supplemental complaint against it. Dean, the snow removal contractor for the shopping plaza, established its entitlement to judgment as a matter of law by demonstrating that it did not owe a duty of reasonable care to plaintiff ( see Murphy v. Ogletree, 266 A.D.2d 860; Autrino v. Hausrath's Landscape Maintenance, 231 A.D.2d 943, lv denied 89 N.Y.2d 812) . Plaintiff failed to raise a triable issue of fact with respect to the existence of a duty owed to her by Penn Traffic or Dean.
The court erred, however, in granting that part of the cross motion of defendant Benderson Development Company, Inc. (Benderson) seeking summary judgment dismissing the second supplemental complaint against it. Benderson, the manager of the shopping plaza, failed to meet its "burden of establishing that the allegedly dangerous condition was not visible and apparent for a sufficient length of time prior to the accident to permit [Benderson], in the exercise of reasonable care, to discover and remedy it" ( Mikolajczyk v. Morgan Contrs., 273 A.D.2d 864, 865; see Duman v. City of Buffalo, 269 A.D.2d 848, 849). In any event, even assuming that Benderson met its initial burden, we conclude that plaintiff raised a triable issue of fact whether Benderson had constructive notice of the allegedly dangerous condition ( see Baillet v. Auerbach, 277 A.D.2d 335; Pacelli v. Pinsley, 267 A.D.2d 706, 707-708). We therefore modify the order by denying that part of the cross motion of Benderson seeking summary judgment dismissing the second supplemental complaint against it and reinstating the second supplemental complaint against it.
On appeal Benderson does not address the propriety of the court's denial of that part of its cross motion seeking summary judgment in the third-party action, nor does Dean address the propriety of the court's denial of that part of its motion seeking summary judgment dismissing the third-party complaint. We therefore do not address those parts of the order ( see Chase Automotive Fin. Corp. v. Allstate Ins. Co., 280 A.D.2d 761, 763).