Opinion
1027 CA 19-02196
05-07-2021
Pauline KINACH, as Executrix of the Estate of Paul Kinach, Deceased, Plaintiff-Respondent, v. TOPS MARKETS, LLC, Defendant, and Bathcanpul, LLC, Defendant-Appellant.
NASH CONNORS, P.C., BUFFALO (MATTHEW A. LOUISOS OF COUNSEL), FOR DEFENDANT-APPELLANT. RALPH W. FUSCO, UTICA, FOR PLAINTIFF-RESPONDENT.
NASH CONNORS, P.C., BUFFALO (MATTHEW A. LOUISOS OF COUNSEL), FOR DEFENDANT-APPELLANT.
RALPH W. FUSCO, UTICA, FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff's decedent fell at a supermarket operated by defendant Tops Markets, LLC (Tops). The building was owned by defendant Bathcanpul, LLC (Bathcanpul) and leased to Tops. This negligence action was thereafter commenced to recover damages for the decedent's injuries. Bathcanpul moved for summary judgment dismissing the complaint against it on the ground that its status as an out-of-possession landlord precluded liability. Supreme Court denied the motion, and we now affirm.
Bathcanpul's failure to support its motion with an accurate copy of the pleadings "require[d] denial of the motion, regardless of the merits" ( Tudisco v. Mincer , 126 A.D.3d 1501, 1501, 6 N.Y.S.3d 878 [4th Dept. 2015] ). Contrary to Bathcanpul's contention, the court providently exercised its discretion in refusing to disregard that oversight (cf. Galpern v. Air Chefs, L.L.C. , 180 A.D.3d 501, 502, 118 N.Y.S.3d 603 [1st Dept. 2020] ). In any event, as the court correctly determined in the alternative, Bathcanpul failed to meet its initial burden of establishing that it was an out-of-possession landlord (see Thompson v. Corbett , 13 A.D.3d 1060, 1061-1062, 787 N.Y.S.2d 563 [4th Dept. 2004] ; Kreimer v. Rockefeller Group , 2 A.D.3d 407, 408, 768 N.Y.S.2d 333 [2d Dept. 2003] ).