| Miller v 7-Eleven, Inc. |
| 2010 NY Slip Op 00936 [70 AD3d 791] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Sherri Miller, Respondent, v 7-Eleven, Inc.,Appellant. |
—[*1] Robert Savitsky, Melville, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Nassau County (Lally, J.), entered March 13, 2009, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The plaintiff testified at her deposition that she fell near an interior entrance mat of a7-Eleven store, and fell on her left knee. The plaintiff also testified that it was raining. Theplaintiff did not see any liquid on the floor either before or after the accident. The plaintiff statedthat she did not know what had caused her to fall. She just noticed that the left knee area of herpants was wet after she fell. The plaintiff allegedly sustained personal injuries as a result of thesubject incident, and she commenced this action against the defendant, which was the owner ofthe premises and franchisor of the store. The defendant moved for summary judgment dismissingthe complaint, contending that it had no duty to maintain the premises, that the plaintiff did notknow what had caused her to fall, and that it did not create or have actual or constructive noticeof the alleged defect. The Supreme Court denied the motion, finding that the defendant failed toestablish, prima facie, its status as an out-of-possession landlord. We reverse.
Here, even assuming the defendant was not an out-of-possession landlord, it neverthelessestablished its prima facie entitlement to judgment as a matter of law by demonstrating that theplaintiff did not know what had caused her to fall (see Hunt v Meyers, 63 AD3d 685 [2009]; Slattery v O'Shea, 46 AD3d 669[2007]; Karwowski v New York CityTr. Auth., 44 AD3d 826 [2007]). In opposition, the plaintiff failed to submit evidencesufficient to raise a triable issue of fact.
Accordingly, the Supreme Court erred in denying the defendant's motion for summaryjudgment dismissing the complaint.
In light of our determination, we need not reach the defendant's remaining contentions.Skelos, J.P., Covello, Balkin and Austin, JJ., concur.