Summary
holding "[a]s a lessee of the property and operator of the store, the defendant had a duty to maintain and repair the escalators on the premises"
Summary of this case from Krasniqi v. Korpenn LLCOpinion
12-30-2015
Eunice ROBERTS, respondent, v. OLD NAVY, appellant.
McAndrew Conboy & Prisco, LLP, Melville, N.Y. (Mary C. Azzaretto of counsel), for appellant. Sean H. Rooney, Brooklyn, N.Y., for respondent.
McAndrew Conboy & Prisco, LLP, Melville, N.Y. (Mary C. Azzaretto of counsel), for appellant.
Sean H. Rooney, Brooklyn, N.Y., for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Butler, J.), entered June 25, 2015, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On July 10, 2010, the plaintiff allegedly was injured while riding an escalator at an Old Navy clothing store located on Jamaica Avenue in Queens. In May 2013, the plaintiff commenced this action against Old Navy to recover damages for personal injuries. After the completion of discovery, the defendant moved for summary judgment dismissing the complaint on the ground that it had no notice of the alleged dangerous condition. The Supreme Court denied the motion, and the defendant appeals.
As a lessee of the property and operator of the store, the defendant had a duty to maintain and repair the escalators on the premises (see Jaikran v. Shoppers Jamaica, LLC, 85 A.D.3d 864, 867, 925 N.Y.S.2d 596 ; see also Green v. City of New York, 76 A.D.3d 508, 508, 906 N.Y.S.2d 587 ; Oxenfeldt v. 22 N. Forest Ave. Corp., 30 A.D.3d 391, 392, 816 N.Y.S.2d 563 ; Fuchs v. Elo Group, 297 A.D.2d 658, 659, 747 N.Y.S.2d 181 ). Therefore, to demonstrate its prima facie entitlement to judgment as a matter of law, the defendant had to establish that it did not create the subject defective condition that caused the subject escalator to suddenly accelerate and then "jerk," or have actual or constructive notice of that condition (see Jaikran v. Shoppers Jamaica, LLC, 85 A.D.3d at 867, 925 N.Y.S.2d 596 ; Green v. City of New York, 76 A.D.3d at 508, 906 N.Y.S.2d 587 ; see generally Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). The defendant failed to do so. The deposition testimony of the defendant's loss prevention agent submitted in support of the defendant's motion failed to establish that the subject escalator was regularly inspected and maintained, or that the defendant did not receive any prior complaints about the subject escalator (see Green v. City of New York, 76 A.D.3d at 509, 906 N.Y.S.2d 587 ; Fuchs v. Elo Group, 297 A.D.2d at 659, 747 N.Y.S.2d 181 ; cf. Bazne v. Port Auth. of N.Y. & N.J., 61 A.D.3d 583, 877 N.Y.S.2d 321 ; Parris v. Port of N.Y. Auth., 47 A.D.3d 460, 460–461, 850 N.Y.S.2d 53 ; Kelly v. Old Navy, 11 A.D.3d 345, 346, 784 N.Y.S.2d 483 ). Since the defendant failed to satisfy its prima facie burden, the Supreme Court properly denied its motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).