Opinion
2011-10-4
Dorothy ORTIZ–TULLA, appellant,v.FEDERATED DEPARTMENT STORES, INC., formerly known as Macy's, et al., respondents.
Ameduri Galante & Friscia, Staten Island, N.Y. (Marvin Ben–Aron of counsel), for appellant.Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Howard R. Cohen of counsel), for respondent Federated Department Stores, Inc., formerly known as Macy's. Mandelbaum, Salsburg, Lazris & Discenza, P.C., New York, N.Y. (Owen J. Lipnick of counsel), for respondents Ultimate Services, Inc., and USI Services Group, Inc.
Ameduri Galante & Friscia, Staten Island, N.Y. (Marvin Ben–Aron of counsel), for appellant.Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Howard R. Cohen of counsel), for respondent Federated Department Stores, Inc., formerly known as Macy's.
Mandelbaum, Salsburg, Lazris & Discenza, P.C., New York, N.Y. (Owen J. Lipnick of counsel), for respondents Ultimate Services, Inc., and USI Services Group, Inc.
In an action to recover damages for personal injuries, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), entered April 9, 2010, as, in effect, granted that branch of the motion of the defendant Federated Department Stores, Inc., formerly known as Macy's, and that branch of the separate motion of the defendants Ultimate Services, Inc., and USI Group Services, Inc., which were for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
The plaintiff commenced the instant action against Federated Department Stores, Inc., formerly known as Macy's (hereinafter Federated), to recover damages for personal injuries allegedly sustained when she fell on a floor in a Macy's department store (hereinafter the store) as a result of Federated's negligence. Later, the plaintiff amended her complaint to add, as defendants, among others, Ultimate Services, Inc., and USI Services Group, Inc., (hereinafter together the USI defendants), alleging that each of them negligently provided cleaning services at the store.
After joining issue, Federated moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it on various grounds, and the USI defendants separately moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them on various grounds.
The Supreme Court, inter alia, in effect, granted that branch of Federated's motion which was for summary judgment dismissing the complaint insofar as asserted against it and that branch of the USI defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff appeals.
Although we agree with the plaintiff that the Supreme Court erred in determining that Federated and the USI defendants, in their respective motions, established their prima facie entitlement to judgment as a matter of law by demonstrating via the plaintiff's deposition testimony that she cannot identify the cause of her fall ( see generally Boyd v. Rome Realty Leasing Ltd. Partnership, 21 A.D.3d 920, 921, 801 N.Y.S.2d 340; Garcia v. New York City Tr. Auth., 269 A.D.2d 142, 142–143, 703 N.Y.S.2d 4; Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828; cf. Reiff v. Beechwood Browns Rd. Bldg. Corp., 54 A.D.3d 1015, 1016, 864 N.Y.S.2d 175; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435, 814 N.Y.S.2d 178; Golba v. City of New York, 27 A.D.3d 524, 524, 813 N.Y.S.2d 125; Curran v. Esposito, 308 A.D.2d 428, 429, 764 N.Y.S.2d 209; Lee v. Rite Aid of N.Y., 261 A.D.2d 368, 368–369, 689 N.Y.S.2d 199; Pianforini v. Kelties Bum Steer, 258 A.D.2d 634, 635, 685 N.Y.S.2d 804), we conclude nonetheless that the Supreme Court properly determined that they are entitled to summary judgment dismissing the complaint insofar as asserted against them on an alternate ground. In particular, Federated and the USI defendants, in their respective motions, established their prima facie entitlement to judgment as a matter of law by demonstrating that they
did not cause or create the alleged hazardous condition that caused the plaintiff's fall or have actual notice or constructive notice of such condition for a sufficient length of time to discover and remedy it ( see Frazier v. City of New York, 47 A.D.3d 757, 758, 850 N.Y.S.2d 552). In opposition, the plaintiff failed to raise a triable issue of fact, either through her own affidavit ( see Harris v. Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127, 1128–1129, 901 N.Y.S.2d 678; McFadden v. Village of Ossining, 48 A.D.3d 761, 762, 854 N.Y.S.2d 141; Fontana v. Fortunoff, 246 A.D.2d 626, 626–627, 668 N.Y.S.2d 394) or that of her expert ( see Harris v. Five Point Mission–Camp Olmstedt, 73 A.D.3d at 1129, 901 N.Y.S.2d 678; Tomol v. Sbarro, Inc., 306 A.D.2d 461, 461, 761 N.Y.S.2d 845; Mankowski v. Two Park Co., 225 A.D.2d 673, 674, 639 N.Y.S.2d 847). Accordingly, the Supreme Court properly granted those branches of the respective motions of Federated and the USI defendants which were for summary judgment dismissing the complaint insofar as asserted against them.