| Chia Yun Tsai v Duane Reade, Inc. |
| 2009 NY Slip Op 05503 [63 AD3d 1096] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Chia Yun Tsai et al., Appellants-Respondents, v DuaneReade, Inc., Respondent-Appellant, et al., Defendants. |
—[*1] Chesney & Murphy, LLP, Baldwin, N.Y. (Marie I. Goutzounis of counsel), forrespondent-appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), fordefendants Landings Development Associates, Maple Associates, Malverne Group, Inc., andStandish Realty Corp.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Cullen, J.), datedSeptember 22, 2008, as denied their cross motion for summary judgment on the issue of liabilityagainst the defendant Duane Reade, Inc., and the defendant Duane Reade, Inc., cross-appealsfrom the same order.
Ordered that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8 [e]);and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant Duane Reade, Inc.
The Supreme Court properly denied the plaintiffs' cross motion for summary judgment onthe issue of liability against the defendant Duane Reade, Inc. (hereinafter Duane Reade). "Adefendant will not be liable for a dangerous or defective condition on its property unless itcreated the condition, or had actual or constructive notice of its existence and a reasonable timeto remedy the defect" (Goldin v Riker, 273 AD2d 197, 197-198 [2000]; see Blumanv Freeport Union Free School Dist., 5 AD3d 341, 342 [2004]; Hanley v Affronti,278 AD2d 868 [2000]; McLaughlan v Waldbaums, Inc., 237 AD2d 335, 336[1997]). The plaintiffs failed to establish the absence of a triable issue of fact regarding whetherDuane Reade created or had prior notice of a defect or dangerous condition related to the rollinggate which fell and struck the injured plaintiff.
The cross appeal must be dismissed as abandoned as Duane Reade does not seek [*2]reversal or modification of any portion of the order (see Sirma vBeach, 59 AD3d 611, 614 [2009]; Bibas v Bibas, 58 AD3d 586, 587 [2009]).Spolzino, J.P., Angiolillo, Chambers and Lott, JJ., concur. [See 2008 NY Slip Op32720(U).]