| Yousefi v Rudeth Realty, LLC |
| 2009 NY Slip Op 02777 [61 AD3d 677] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Victoria Yousefi et al., Appellants, v Rudeth Realty, LLC,et al., Respondents. |
—[*1] Boeggeman, George & Corde, P.C., White Plains, N.Y. (Cynthia Dolan of counsel), forrespondents Rudeth Realty, LLC, and Great Atlantic & Pacific Tea Company, Inc. Goodman & Jacobs, LLP, New York, N.Y. (Sue C. Jacobs and Howard M. Wagner ofcounsel), for respondent Georal International of New York, Inc.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from (1) so much of an order of the Supreme Court, Westchester County(O. Bellantoni, J.), entered September 27, 2007, as granted that branch of the motion of thedefendants Great Atlantic & Pacific Tea Company, Inc., and Rudeth Realty, LLC, which was forsummary judgment dismissing the complaint insofar as asserted against them, and that branch ofthe cross motion of the defendant Georal International of New York, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against it, and (2) so much of anorder of the same court entered March 12, 2008, as, upon reargument, adhered to those portionsof the original determination.
Ordered that the appeal from the order entered September 27, 2007 is dismissed, as thatorder was superseded by the order entered March 12, 2008, made upon reargument; and it isfurther,
Ordered that the order entered March 12, 2008 is affirmed insofar as appealed from; and it isfurther,[*2]
Ordered that one bill of costs is awarded to therespondents appearing separately and filing separate briefs.
The Supreme Court properly granted that branch of the motion of the defendants GreatAtlantic & Pacific Tea Company, Inc. (hereinafter A&P), and Rudeth Realty, LLC (hereinafterRudeth), which was for summary judgment dismissing the complaint insofar as asserted againstthem. Evidence submitted by A&P and Rudeth established, prima facie, that they did not createthe alleged defective condition of the subject exit door or have actual or constructive notice ofsame (see Lasser v Northrop GrummanCorp., 55 AD3d 561 [2008]; Cox v Pepe-Fareri One, LLC, 47 AD3d 749 [2008]; Johnson v Nouveau El. Indus., Inc., 38AD3d 611 [2007]). In opposition, the plaintiffs failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320 [1986]).
In addition, the plaintiffs alleged for the first time in their opposition to the motion that thedoctrine of res ipsa loquitur applied to this case and precluded summary judgment. "Whilemodern practice permits a plaintiff to successfully oppose a motion for summary judgment byrelying on an unpleaded cause of action which is supported by the plaintiff's submissions" (Gallello v MARJ Distribs., Inc., 50AD3d 734, 736 [2008], quoting Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc.,15 AD3d 523, 524 [2005]; see Alvord & Swift v Muller Constr. Co., 46 NY2d276, 280 [1978]), in this case, the plaintiffs' inexcusable delay in presenting the new theory ofliability warranted the Supreme Court's rejection of the argument (see Medina v Sears, Roebuck & Co.,41 AD3d 798, 800 [2007]; Mainline Elec. Corp. v Pav-Lak Indus., Inc., 40 AD3d 939,939-940 [2007]). In any event, the evidence failed to show that the doctrine of res ipsa loquiturapplies to this case (see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226[1986]).
The defendant Georal International of New York, Inc., established its prima facie entitlementto judgment as a matter of law dismissing the complaint insofar as asserted against it bydemonstrating that it did not owe a duty of care to the plaintiffs by virtue of its limited serviceagreement with A&P (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Altinma v East 72nd Garage Corp., 54AD3d 978 [2008]). In opposition, the plaintiffs failed to raise a triable issue of fact (seeMoch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]). Mastro, J.P., Dillon,Dickerson and Leventhal, JJ., concur.