| Brandon v Hallivis |
| 2009 NY Slip Op 07969 [67 AD3d 618] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Wanda Brandon, Respondent-Appellant, v SalomonHallivis et al., Appellants-Respondents, and 85 Pitt Grocery, Inc., Respondent, et al.,Defendant. |
—[*1] Siler & Ingber, LLP, Mineola, N.Y. (Robert M. Brinen of counsel), for respondent-appellant. Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants Salomon Hallivis and85-87 Pitt Street Realty Corp. appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Jacobson, J.), dated September 23, 2008, as denied their crossmotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them, and the plaintiff cross-appeals, as limited by her notice of appeal and brief, from somuch of the same order as granted that branch of the motion of the defendant 85 Pitt Grocery,Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, and the cross motionof those defendants for summary judgment dismissing the complaint and all cross claims insofaras asserted against them is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants Salomon Hallivis and 85-87 PittStreet Realty Corp., and the defendant 85 Pitt Grocery, Inc., appearing separately and filingseparate briefs, payable by the plaintiff.
The plaintiff alleged that, on January 15, 2006, at approximately 7:30 a.m., she slipped andfell on a patch of ice on the sidewalk in front of a grocery store located at 85 Pitt Street inManhattan. It is undisputed that it had snowed that morning between 1:00 a.m. and 4:00 a.m.,with accumulation totaling approximately two inches. It is also undisputed that the grocery storewas closed at the time of the accident, and did not open for business until 8:30 a.m. The plaintiffcommenced this action against, among others, the building owners Salomon Hallivis and 85-87Pitt Street Realty Corp. (hereinafter together the owners) and the grocery store 85 Pitt Grocery,Inc. (hereinafter Pitt Grocery), asserting causes of action sounding in negligence. After joinder ofissue, Pitt Grocery moved for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against it, and the owners cross-moved for the same relief. The SupremeCourt, inter alia, denied the owners' cross motion and granted that branch of Pitt Grocery'smotion which was for summary judgment dismissing the complaint insofar as asserted against it.The owners appeal the denial of their cross motion and the plaintiff cross-appeals from so muchof the order as granted that branch of Pitt Grocery's motion which was for summary judgmentdismissing the complaint insofar as asserted against it.
The owners and Pitt Grocery established their prima facie entitlement to judgment as amatter of law with evidence that they had no actual or constructive notice of the allegedlydangerous condition and, in any event, did not have a reasonably sufficient time to remedy theallegedly dangerous condition prior to the plaintiff's accident (see Lee-Pack v 1 Beach 105 Assoc.,LLC, 29 AD3d 644 [2006]; Washington v Community Mut. Sav. Bank, 308AD2d 444, 445 [2003]; Joseph v Danice Stores of Nostrand Ave., 290 AD2d 536 [2002];Whitt v St. John's Episcopal Hosp., 258 AD2d 648 [1999]; Urena v New York CityTr. Auth., 248 AD2d 377 [1998]). In opposition, the plaintiff failed to raise a triable issue offact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, theSupreme Court properly granted that branch of Pitt Grocery's motion which was for summaryjudgment dismissing the complaint insofar as asserted against it, and should have granted theowners' cross motion. Rivera, J.P., Fisher, Belen and Austin, JJ., concur.