Opinion
2011-10-25
Geoffrey JOE, appellant,v.UPPER ROOM MINISTRIES, INC., respondent, et al., defendants.
Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz of counsel), for appellant.Galvano & Xanthakis, P.C., New York, N.Y. (Constantine A. Pantazis of counsel), for respondent.
Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz of counsel), for appellant.Galvano & Xanthakis, P.C., New York, N.Y. (Constantine A. Pantazis of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated April 26, 2010, as granted that branch of the motion of the defendant Upper Room Ministries, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Upper Room Ministries, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is denied.
The plaintiff allegedly sustained injuries when he slipped and fell on ice in a parking lot owned by the defendant Upper Room Ministries, Inc. (hereinafter Upper Room).
The Supreme Court should have denied that branch of Upper Room's motion which was for summary judgment dismissing the complaint insofar as asserted
against it. In support of its motion, Upper Room submitted conflicting deposition testimony regarding the general condition of the parking lot at the time of the accident, and failed to submit evidence regarding when it or its agent last inspected the parking lot prior to the accident. Under the circumstances, Upper Room failed to establish, prima facie, that it did not have actual or constructive notice of the allegedly dangerous condition ( see Baines v. G & D Ventures, Inc., 64 A.D.3d 528, 529, 883 N.Y.S.2d 256; Taylor v. Rochdale Vil., Inc., 60 A.D.3d 930, 931–932, 875 N.Y.S.2d 561). Since Upper Room failed to meet its initial burden as the movant, we need not review the sufficiency of the plaintiff's opposition papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The plaintiff's remaining contention is being raised for the first time on appeal, and thus, is not properly before the Court.