| Mejia v Era Realty Co. |
| 2010 NY Slip Op 00484 [69 AD3d 816] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Guadalupe Mejia, Also Known as Fred Mejia et al.,Appellants, v Era Realty Co. et al., Respondents. |
—[*1] Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Robert B. Weissman of counsel), forrespondents Era Realty Co., Edward Cohen, and Robert Cohen. Jacobson & Schwartz, Rockville Centre, N.Y. (Henry J. Cernitz of counsel), for respondentCircle A Foods, Inc.
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, Nassau County (Phelan, J.), datedMay 14, 2008, as granted that branch of the motion of the defendants Era Realty Co., EdwardCohen, and Robert Cohen, and that branch of the cross motion of the defendant Circle A Foods,Inc., which were for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe defendants appearing separately and filing separate briefs.
The plaintiffs' contention that the defendants should not have been awarded summaryjudgment dismissing the complaint insofar as asserted against them because they failed to submitevidence in admissible form in support of their respective motion and cross motion is withoutmerit (see Mazzarelli v 54 Plus RealtyCorp., 54 AD3d 1008 [2008]; Felberbaum v Weinberger, 40 AD3d 808, 809 [2007]).
The plaintiffs alleged that the injured plaintiff tripped and fell over a hole in a parking lotowned by the defendants Era Realty Co., Edward Cohen, and Robert Cohen (hereinaftercollectively the Era defendants), and leased to the defendant Circle A Foods, Inc. (hereinafterCircle). With respect to the Era defendants, they established their entitlement to judgment as amatter of law by demonstrating, prima facie, that they were out-of-possession landlords who hadno duty to maintain the parking lot (seeSanchez v Barnes & Noble, Inc., 59 AD3d 698 [2009]; Brewster v Five Towns Health Care RealtyCorp., 59 AD3d 483 [2009]; Greco v Starbucks Coffee Co., 58 AD3d 681 [2009]; Robinson v M. Parisi & Son Constr. Co.,Inc., 51 AD3d 653 [2008]). In opposition, the plaintiffs failed to raise a triable issue offact (see Chery v Exotic Realty, Inc.,34 AD3d 412 [2006]). With respect to Circle, in response to its demonstration of itsentitlement to judgment as a matter of law, the plaintiffs failed to submit evidence sufficient toraise a triable issue of fact (see Gordon v American Museum of Natural History, 67NY2d 836 [1986]). The affidavit of the plaintiffs' expert was speculative and insufficient to raisea triable issue of fact as to whether Circle had constructive notice of the hole that allegedlycaused the injured plaintiff to fall, or whether the parking lot was adequately lit at the time of theaccident (see generally Greco vStarbucks Coffee Co., 58 AD3d 681 [2009]). Mastro, J.P., Fisher, Angiolillo andLeventhal, JJ., concur.