Opinion
1068 CA 21-00079
01-28-2022
Gary REICHMUTH, Plaintiff-Respondent-Appellant, v. FAMILY VIDEO MOVIE CLUB, INC., Dancyn, Inc., Doing Business as Little Caesars Pizza, Emily Johnson and Daniel Johnson, Defendants-Appellants-Respondents.
HURWITZ & FINE, P.C., BUFFALO (V. CHRISTOPHER POTENZA OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS. DOLCE FIRM, BUFFALO (ANNE M. WHEELER OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (V. CHRISTOPHER POTENZA OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.
DOLCE FIRM, BUFFALO (ANNE M. WHEELER OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he stepped and fell off the sidewalk in front of a Little Caesars restaurant. The property on which the restaurant was located was allegedly owned by defendant Family Video Movie Club, Inc. (Family Video) and a portion of the property was allegedly leased by defendants Dancyn, Inc., doing business as Little Caesars Pizza, Daniel Johnson, and Emily Johnson, who also operated the restaurant. Plaintiff moved for summary judgment against Family Video on liability and for summary judgment dismissing the affirmative defense in defendants’ answers that alleged comparative negligence. Defendants cross-moved for summary judgment dismissing the complaint. Defendants appeal and plaintiff cross-appeals from an order that denied the motion and cross motion. We affirm.
Addressing the cross appeal first, contrary to plaintiff's contention, we conclude that Supreme Court properly denied that part of the motion seeking summary judgment against Family Video on the issue of liability. In support of the motion, plaintiff submitted, inter alia, an affidavit from an expert who opined that the sidewalk violated several building codes and standards of the American National Standards Institute. Such evidence, however, " ‘constituted only some evidence of negligence’ rather than negligence per se" ( Hartnett v. Zuchowski , 175 A.D.3d 1831, 1832, 107 N.Y.S.3d 751 [4th Dept. 2017] ; see Morreale v. Froelich , 125 A.D.3d 1280, 1281, 3 N.Y.S.3d 479 [4th Dept. 2015] ) and is insufficient to meet plaintiff's initial burden on that part of the motion ( Hartnett , 175 A.D.3d at 1832, 107 N.Y.S.3d 751 ). We reject plaintiff's further contention on cross appeal that the court erred in denying the motion with respect to the affirmative defense of comparative negligence. " ‘[T]he question of a plaintiff's comparative negligence almost invariably raises a factual issue for resolution by the trier of fact’ " ( Dasher v. Wegmans Food Mkts., Inc. , 305 A.D.2d 1019, 1019, 758 N.Y.S.2d 585 [4th Dept. 2003] ; see Chilinski v. Maloney , 158 A.D.3d 1174, 1175, 70 N.Y.S.3d 635 [4th Dept. 2018] ). Here, plaintiff failed to meet his initial burden of establishing "a total absence of comparative negligence as a matter of law" ( Dasher , 305 A.D.2d at 1019, 758 N.Y.S.2d 585 ; see McCarthy v. Hameed , 191 A.D.3d 1462, 1463, 141 N.Y.S.3d 824 [4th Dept. 2021] ).
Contrary to defendants’ contention on appeal, we conclude that the court properly denied their cross motion for summary judgment dismissing the complaint. The court properly determined based upon the conflicting expert affidavits that there is an issue of fact whether a dangerous condition existed on the property (see Hanley v. Affronti , 278 A.D.2d 868, 869, 718 N.Y.S.2d 753 [4th Dept. 2000] ). We have considered defendants’ remaining contentions and conclude that they are without merit.