| Gross v Hertz Local Edition Corp. |
| 2010 NY Slip Op 03552 [72 AD3d 1518] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Suzann Gross, Individually and as Executrix of William G. Gross,M.D., Deceased, Respondent, v Hertz Local Edition Corp. et al., Appellants. Hertz Local EditionCorp., Third-Party Plaintiff-Respondent, v Jim Culligan, Inc., Third-PartyDefendant-Appellant. |
—[*1] Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of counsel), fordefendant-appellant/third-party defendant-appellant Jim Culligan, Inc.. Connors & Vilardo, LLP, Buffalo (Vincent E. Doyle, III, of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredOctober 29, 2008 in a wrongful death and personal injury action. The order, inter alia, denied themotion of defendant Hertz Local Edition Corp. for summary judgment dismissing the complaintagainst it.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting in part the motion of defendant Hertz Local Edition Corp. and dismissing thenegligence cause of action against it insofar as that cause of action is based on the allegedlyhazardous condition of the parking lot in question and as modified the order is affirmed withoutcosts.
Memorandum: Plaintiff commenced these actions, which subsequently were consolidated,seeking damages for the wrongful death and conscious pain and suffering of her husband(decedent), who died as a result of a head injury he sustained in the parking lot of an automobiledealership owned by defendant Jim Culligan, Inc. (Culligan). On the day of the [*2]accident, decedent brought his leased vehicle to Culligan forrepairs and arranged to rent a vehicle from defendant Hertz Local Edition Corp. (Hertz), whichused office space in Culligan's service area and parked its rental vehicles in Culligan's parkinglot. Decedent slipped and fell on a patch of ice as he walked across the parking lot in thedirection of his rental vehicle.
The complaint against Hertz asserts a cause of action sounding in negligence based on theallegedly hazardous condition of the parking lot and, as amplified by the amended bill ofparticulars, also based on the alleged failure of Hertz to obtain medical attention for decedentpromptly after his fall. The complaint against Culligan, on the other hand, asserts a cause ofaction sounding in negligence based both on the allegedly hazardous condition of the parking lotand Culligan's alleged failure to obtain medical attention for decedent promptly after his fall.Supreme Court properly denied that part of the motion of each defendant seeking summaryjudgment dismissing the negligence cause of action against it insofar as that cause of action isbased on the alleged failure to obtain medical attention for decedent promptly after his fall.Neither Culligan nor Hertz addressed that basis for the negligence cause of action in eachcomplaint in their initial submissions in support of their respective motions, and thus the burdennever shifted to plaintiff to raise a triable issue of fact (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). "Defendants' reply papers could not serve tosupplement their initial moving papers inasmuch as it is well established that [t]he function of[reply papers] is to address arguments made in opposition to the position taken by the movant[s]and not to permit [them] to introduce new arguments in support of the motion" (Paul v Cooper, 45 AD3d 1485,1486 [2007] [internal quotation marks omitted]).
We further conclude that the court properly denied that part of the motion of Culliganseeking summary judgment dismissing the negligence cause of action against it insofar as thatcause of action is based on the allegedly hazardous condition of the parking lot. Culligan failedto meet its initial burden of establishing that it lacked constructive notice of the condition thatcaused decedent's fall (see Walter vUnited Parcel Serv., Inc., 56 AD3d 1187, 1188 [2008]; Conklin v Ulm, 41 AD3d 1290,1291 [2007]). In any event, we conclude on the record before us that there is an issue of fact withrespect to constructive notice, based on the affidavit of plaintiff's expert meteorologistconcerning the icy condition of the parking lot (see Walter, 56 AD3d at 1188).
The court erred, however, in denying that part of the motion of Hertz seeking summaryjudgment dismissing the negligence cause of action against it insofar as that cause of action isbased on the allegedly hazardous condition of the parking lot. Hertz met its initial burden bysubmitting evidence that it did not own, occupy or have a right to control or maintain the area ofthe parking lot where decedent fell, thereby establishing as a matter of law that it owed "no dutyof care with respect to any unsafe condition existing there" (Masterson v Knox, 233AD2d 549, 550 [1996]). Neither plaintiff nor Culligan raised a triable issue of fact to defeat thatpart of the motion of Hertz. We therefore modify the order accordingly. Present—Centra,J.P., Peradotto, Lindley and Green, JJ.