Opinion
2018–11770 Index No. 605999/15
03-25-2020
Diana PINCK–JAFRI, appellant, v. MARSH REALTY, LLC, et al., respondents.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Lauren Bryant ], of counsel), for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondents.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Lauren Bryant ], of counsel), for appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondents.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered September 10, 2018. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
On March 12, 2015, the plaintiff, while exiting a cab, allegedly slipped and fell on an ice condition in the parking lot of a 7–Eleven store in Roslyn. The plaintiff commenced this personal injury action against the defendants, alleging that the defendants were negligent in, among other things, maintaining the parking lot area where the subject accident occurred. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.
The Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint. The defendant Marsh Realty, LLC (hereinafter Marsh Realty), failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the ground that it was an out-of-possession landlord. Marsh Realty failed to show that it had no duty, contractual or otherwise, to maintain the premises, including the area of the parking lot where the plaintiff allegedly slipped and fell (see Azumally v. 16 W. 19th LLC, 79 A.D.3d 922, 913 N.Y.S.2d 730 ; Lalicata v 39–15 Skillman Realty Co. LLC, 63 A.D.3d 889, 890, 882 N.Y.S.2d 185 ).
Moreover, the defendants failed to eliminate triable issues of fact as to whether they had a duty to maintain in a reasonably safe condition the area of the parking lot where the plaintiff allegedly slipped (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Simmons v. Elmcrest Homeowners' Assn., 11 A.D.3d 447, 783 N.Y.S.2d 384 ). They further failed to eliminate triable issues of fact as to whether they, or anyone on their behalf, caused, created, or exacerbated the ice condition upon which the plaintiff allegedly slipped and fell (see Viera v. Rymdzionek, 112 A.D.3d 915, 977 N.Y.S.2d 390 ; Braun v. Weissman, 68 A.D.3d 797, 890 N.Y.S.2d 615 ), and whether they lacked constructive notice of the alleged ice condition (see Rodriguez v. New York City Hous. Auth., 169 A.D.3d 947, 948, 94 N.Y.S.3d 318 ; Quinones v. Starret City, Inc., 163 A.D.3d 1020, 81 N.Y.S.3d 184 ; Eksarko v. Associated Supermarket, 155 A.D.3d 826, 827, 63 N.Y.S.3d 723 ). Since the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint, the Supreme Court should have denied their motion for summary judgment without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
MASTRO, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.