| Ehrenberg v Starbucks Coffee Co. |
| 2011 NY Slip Op 01795 [82 AD3d 829] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Jordan Ehrenberg, an Infant, by His Mother and Natural Guardian,Corina Ehrenberg, et al., Respondents, v Starbucks Coffee Company,Appellant-Respondent, and Allen Brafman et al.,Respondents-Appellants. |
—[*1] Gallo Vitucci & Klar LLP, New York, N.Y. (Howard P. Klar of counsel), forrespondents-appellants. Burns & Harris (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and JillRosen], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Starbucks CoffeeCompany appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Schneier, J.), dated December 18, 2009, as denied its cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it, and thedefendants Allen Brafman and Edith Brafman cross-appeal, as limited by their notice of crossappeal and brief, from so much of the same order as denied their motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them, made on theground that they are out-of-possession landlords who owe no duty of care to the plaintiffs.
Ordered that the order is reversed, on the law, with one bill of costs payable to the defendantsappearing separately and filing separate briefs, the cross motion of the defendant StarbucksCoffee Company for summary judgment dismissing the complaint and all cross claims insofar asasserted against it is granted, upon searching the record, summary judgment is awarded to thedefendants Allen Brafman and Edith Brafman dismissing the complaint and all cross claimsinsofar as asserted against them on the ground that the plaintiffs could not identify any act oromission attributable to those defendants as the cause of the subject accident, and the motion ofthe defendants Allen Brafman and Edith Brafman for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them, made on the ground that they areout-of-possession landlords who owe no duty of care to the plaintiffs, is denied as academic.
The infant plaintiff allegedly sustained injuries when a cup of hot tea spilled on him atpremises leased by the defendant Starbucks Coffee Company (hereinafter Starbucks) from theowners, Allen Brafman and Edith Brafman (hereinafter together the Brafmans). Immediatelyprior to the accident, [*2]the infant plaintiff's nanny allegedly waswheeling him in a stroller up a ramp with her right hand, and balancing the cup of tea on a platewith her left hand. The plaintiffs commenced this action against Starbucks and the Brafmans,alleging that the accident was caused by a dangerous and defective condition on the premises.The Brafmans moved for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them on the ground that they were out- of-possession landlords whoowed no duty of care to the plaintiffs, and Starbucks cross-moved for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it. The Supreme Courtdenied the motion and the cross motion. We reverse.
Starbucks established its prima facie entitlement to judgment as a matter of law bydemonstrating that the plaintiffs were unable to identify a dangerous or defective conditionactually causing the accident (seeMitthauer v T. Moriarty & Son, Inc., 69 AD3d 588 [2010]; Birman v Birman, 8 AD3d 219[2004]). In opposition, the plaintiffs failed to raise a triable issue of fact.
Since the affidavit of the plaintiff's nanny was insufficient to raise a triable issue of fact as towhether the ramp upon which the she allegedly wheeled the stroller was negligently designed,installed, or maintained, we need not address Starbucks' contention that the Supreme Court, indenying its cross motion for summary judgment, erred in considering that affidavit because thenanny's identity was not properly disclosed by the plaintiffs in their responses to the defendants'demands for disclosure or a preliminary conference order (see Williams v ATA Hous. Corp., 19 AD3d 406, 407 [2005]).However, the affidavit of the plaintiffs' expert, which the plaintiffs also submitted in oppositionto the cross motion, should not have been considered by the Supreme Court, since that expertwitness was not identified by the plaintiffs until after the note of issue and certificate of readinesswere filed, attesting to the completion of discovery, and the plaintiffs offered no valid excuse forthe delay (see Gerardi v Verizon N.Y.,Inc., 66 AD3d 960, 961 [2009]; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917[2009]; Ortega v New York City Tr. Auth., 262 AD2d 470 [1999]). Accordingly, theSupreme Court should have granted Starbucks' cross motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against it.
The Brafmans moved for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them, albeit on a different ground than that relied upon by Starbucks,namely, that they were out-of-possession landlords who owed no duty of care to the plaintiffs.However, this Court has the authority to search the record and award summary judgment to aparty with respect to an issue that was the subject of another party's summary judgment motion.Therefore, upon searching the record, we award summary judgment to the Brafmans dismissingthe complaint and all cross claims insofar as asserted against them on the ground that theplaintiffs could not identify any act or omission attributable to the Brafmans as the cause theaccident. Dillon, J.P., Dickerson, Hall and Roman, JJ., concur.