| Kaplan v Great Neck Donuts, Inc. |
| 2009 NY Slip Op 09432 [68 AD3d 931] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Sara Kaplan, Respondent, v Great Neck Donuts, Inc.,Appellant, and Sui Ying Wat, Also Known as Susie Wat,Respondent. |
—[*1] Fine & Bassik, Great Neck, N.Y. (Jason A. Greenberg and Barry S. Bassik of counsel), forplaintiff-respondent. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (AntonPiotroski of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, the defendant Great Neck Donuts, Inc.,appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County(Parga, J.), dated November 25, 2008, as denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the plaintiff-respondent to the appellant, the motion of the defendant Great NeckDonuts, Inc., for summary judgment dismissing the complaint and all cross claims insofar asasserted against it is granted, and, upon searching the record, summary judgment is awarded tothe defendant Sui Ying Wat, also known as Susie Wat, dismissing the complaint insofar asasserted against her.
While exiting a Dunkin' Donuts restaurant which was operated by the appellant, on premisesleased from the defendant Sui Ying Wat, also known as Susie Wat, the plaintiff tripped and fellas she traversed a brick step. After joinder of issue, the appellant moved for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it.
The appellant established its prima facie entitlement to judgment as a matter of law bydemonstrating, through the submission of the plaintiff's deposition testimony, that she wasunable to identify the cause of her fall (see Denicola v Costello, 44 AD3d 990 [2007];Rodriguez v Cafaro, 17 AD3d 658 [2005]). Notably, at her deposition, the plaintifftestified that, immediately prior to the accident, she was looking straight ahead. In opposition,the plaintiff failed to raise a triable issue of fact. The affidavit submitted by the plaintiff inopposition to the motion merely raised a feigned issue designed to avoid the consequences [*2]of her earlier deposition testimony (see Denicola vCostello, 44 AD3d at 990). The plaintiff also submitted an affidavit of an expert who allegedthat the step in question was in violation of various provisions of the New York State UniformFire Prevention and Building Code. However, since the plaintiff did not know what caused her tofall and did not claim, inter alia, that she would not have fallen, but for the elevation differentialshe encountered after exiting the appellant's store, it would be speculative to assume that thesealleged violations proximately caused her fall (id.). Therefore, the Supreme Court shouldhave granted the appellant's motion.
Wat separately moved, on the same ground as the appellant, for summary judgmentdismissing the complaint insofar as asserted against her. Although Wat's separate motion wasdenied, she, unlike the appellant, did not appeal from so much of the order as was adverse to her.Nonetheless, this Court has the authority to search the record and award summary judgment to anonappealing party with respect to an issue that was the subject of the motion before theSupreme Court (see Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712, 714[2009]). Upon searching the record, summary judgment should be awarded to Wat dismissingthe complaint insofar as asserted against her on the ground that the plaintiff could not identifythe cause of her fall (see CPLR 3212 [b]). Rivera, J.P., Dillon, Miller and Roman, JJ.,concur.