Opinion
No. 126 CA 23-01124
06-14-2024
ROSITA SCOTT, PLAINTIFF-RESPONDENT, v. TOPS MARKETS, LLC, DEFENDANT-APPELLANT, 1438 SOUTH PARK AVE CO., LLC, AND BENENSON DEVELOPMENT CORPORATION, DEFENDANTS.
NASH CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR DEFENDANT-APPELLANT. SHAW & SHAW, P.C., HAMBURG (BLAKE ZACCAGNINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
NASH CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR DEFENDANT-APPELLANT.
SHAW & SHAW, P.C., HAMBURG (BLAKE ZACCAGNINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., MONTOUR, OGDEN, AND DELCONTE, JJ.
Appeal from an order of the Supreme Court, Erie County (Lynn W. Keane, J.), entered May 30, 2023. The order denied that part of the motion of defendants seeking summary judgment dismissing the amended complaint against defendant Tops Markets, LLC.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on a wet floor in a building owned and operated by defendants. Defendants moved for summary judgment dismissing the amended complaint, and Supreme Court, inter alia, denied that part of defendants' motion seeking dismissal of the amended complaint against defendant Tops Markets, LLC (Tops). Tops appeals, and we affirm.
" 'In seeking summary judgment dismissing the [amended] complaint, defendant[s] had the initial burden of establishing that [they] did not create the alleged dangerous condition and did not have actual or constructive notice of it'" (King v Sam's E., Inc., 81 A.D.3d 1414, 1414-1415 [4th Dept 2011]). Defendants failed to meet their initial burden of demonstrating that Tops did not create the allegedly dangerous condition (see Cooper v Carmike Cinemas, Inc., 41 A.D.3d 1279, 1280 [4th Dept 2007]; Telesco v Bateau, 273 A.D.2d 894, 894 [4th Dept 2000]) and that Tops did not have notice of the dangerous condition (see Gentile v University of Rochester Med. Ctr., 292 A.D.2d 874, 875 [4th Dept 2002]; Mancini v Quality Mkts., 256 A.D.2d 1177, 1177-1178 [4th Dept 1998]). Because defendants failed to meet their initial burden with respect to Tops, we need not consider the sufficiency of plaintiff's opposition to the motion (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Joyes v Buffalo Waterfront Rest. Corp., 262 A.D.2d 1019, 1019-1020 [4th Dept 1999]).