| Shindler v Warf |
| 2009 NY Slip Op 07396 [66 AD3d 762] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Douglas Shindler et al., Respondents-Appellants, v ArvinWarf, Defendant, and Skwere Mosdos, Inc., et al., Appellants-Respondents, and Central WaterSystems Installation, Inc., Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Jamie C. Kulovitz,Patrick J. Lawless, and Richard E. Lerner of counsel), for appellant-respondent I-86 ServiceCenter, Inc. Finkelstein & Partners, LLP, Newburgh, N.Y. (James W. Shuttleworth III of counsel), forrespondents-appellants. Eric Wolpin, New York, N.Y. (Thomas G. Connolly of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the defendants Skwere Mosdos,Inc., and Camp Bnos Skwere appeal from so much of an order of the Supreme Court, KingsCounty (Starkey, J.), dated May 30, 2007, as granted the motion of the defendant Central WaterSystems Installation, Inc., for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against it and denied their cross motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them or for common-lawindemnification from the other defendants, and the defendant I-86 Service Center, Inc.,separately appeals from so much of the same order as denied its cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it, and theplaintiffs cross-appeal from so much of the same order as granted that branch of the motion ofthe defendant Central Water Systems Installation, Inc., which was for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthat branch of the cross motion of the defendants Skwere Mosdos, Inc., and Camp Bnos Skwerewhich was for summary judgment dismissing the complaint and all cross claims insofar asasserted against them and denying the cross motion of the defendant I-86 Service Center, Inc.,for summary judgment dismissing the complaint and all cross claims insofar as asserted againstit, and substituting therefor provisions granting that branch of the cross motion of the defendantsSkwere Mosdos, Inc., and Camp Bnos Skwere and granting the cross motion of the defendantI-86 Service Center, Inc.; as so modified, the order is affirmed insofar as appealed andcross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filingseparate briefs.[*2]
On April 30, 2003, the infant plaintiff allegedly sustainedpersonal injuries at premises owned by the defendants Skwere Mosdos, Inc., and Camp BnosSkwere.
In a premises liability case, a defendant moving for summary judgment has the initial burdenof establishing that it did not create the defective condition or have actual or constructive noticeof its existence for a sufficient length of time to discover and remedy it (see Smith v New York City Hous. Auth.,52 AD3d 808 [2008]; McKeon v Town of Oyster Bay, 292 AD2d 574 [2002]).Here, the defendants Skwere Mosdos, Inc., and Camp Bnos Skwere submitted evidencesufficient to establish, prima facie, that they did not create or have actual or constructive noticeof the alleged hazardous condition which proximately caused the infant plaintiff's injuries(see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Inopposition, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v Cityof New York, 49 NY2d 557 [1980]).
The defendant Central Water Systems Installation, Inc. (hereinafter Central), and thedefendant I-86 Service Center, Inc. (hereinafter I-86), established their respective entitlement tojudgment as a matter of law by demonstrating that they owed no duty of care to the infantplaintiff (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]). In opposition, theplaintiffs failed to raise a triable issue of fact as to whether either Central or I-86 assumed a dutyof care by creating the alleged hazardous condition which proximately caused the infantplaintiff's injuries (see Xhika vTrizechahn Regional Pooling, LLC, 49 AD3d 719, 720 [2008]; Horowitz v MarelElec. Servs., 271 AD2d 572 [2000]). Rivera, J.P., Florio, Eng and Leventhal, JJ., concur.