| Mignogna v 7-Eleven, Inc. |
| 2010 NY Slip Op 06782 [76 AD3d 1054] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Robert Mignogna, Respondent, v 7-Eleven, Inc.,Defendant, and Guy Constantopoulos, Appellant. |
—[*1] Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip, N.Y. (Frank A. Tinari of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant Guy Constantopoulosappeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County(Costello, J.), dated February 2, 2010, as denied that branch of the defendants' motion which wasfor summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
This action arises from the plaintiff's alleged slip and fall on a patch of black ice in theparking lot of a 7-Eleven store, owned by the defendant Guy Constantopoulos (hereinafter theappellant) pursuant to a franchise agreement.
In moving for summary judgment, the appellant failed to establish, prima facie, that he didnot create the icy condition that allegedly caused the plaintiff to slip and fall or that he lackedactual or constructive notice of it (seeMedina v La Fiura Dev. Corp., 69 AD3d 686 [2010]; Lebron v Napa Realty Corp., 65 AD3d436, 436-437 [2009]; Baines vG&D Ventures, Inc., 64 AD3d 528, 529 [2009]; Totten v Cumberland Farms, Inc., 57 AD3d 653, 654 [2008]; Strange v Colgate Design Corp., 6AD3d 422 [2004]). In support of his motion, the appellant failed to submit evidence from hisemployees who were at the premises on the day of the accident and who were responsible forshoveling and salting the area where the plaintiff allegedly fell, stating when the parking lot waslast inspected, shoveled, or plowed (see Totten v Cumberland Farms, Inc., 57 AD3d at654; Gerbi v Tri-Mac Enters. of StonyBrook, Inc., 34 AD3d 732 [2006]).
Under these circumstances, it cannot be said, as a matter of law, that there was no triableissue of fact as to the appellant's liability for causing the plaintiff's accident. Since the appellantfailed to meet his prima facie burden, it is not necessary to consider the sufficiency of theplaintiff's opposition papers (see Medina v La Fiura Dev. Corp., 69 AD3d at 686-687;Baines v G&D Ventures, Inc., 64 AD3d at 529; Strange v Colgate Design Corp.,6 AD3d at 423). Accordingly, the Supreme Court properly denied that branch of the defendants'motion which was [*2]for summary judgment dismissing thecomplaint insofar as asserted against the appellant (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Covello, J.P., Santucci, Balkin and Austin, JJ., concur.