| Granata v City of White Plains |
| 2011 NY Slip Op 07604 [88 AD3d 948] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Theodore Granata, Jr., as Executor of Concetta Russo Carriero,Deceased, et al., Plaintiffs, v City of White Plains, Appellant, and Mills Corporation,Respondent, et al., Defendants. |
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In an action, inter alia, to recover damages for negligence and wrongful death, the defendantCity of White Plains appeals, as limited by its brief, from so much of an order of the SupremeCourt, Westchester County (Lefkowitz, J.), entered July 27, 2010, as, upon granting that branchof the motion of the defendant Mills Corporation which was for summary judgment dismissingthe complaint insofar as asserted against it, found that the City of White Plains had a duty toprovide security within the parking garage where the underlying incident occurred.
Ordered that the appeal is dismissed, without costs or disbursements.
The plaintiffs commenced this action, inter alia, to recover damages for negligence andwrongful death after their decedent was attacked and killed in the parking garage attached to theWhite Plains Galleria Mall (hereinafter the Mall). The defendant Mills Corporation (hereinafterMills), the alleged owner of the Mall, moved, inter alia, for summary judgment dismissing thecomplaint insofar as asserted against it. Mills asserted that it did not secure, construct, operate, ormaintain the parking garage and that it was not responsible for providing security within it.
The Supreme Court granted that branch of Mills' motion which was for summary judgmentdismissing the complaint insofar as asserted it. In arriving at its determination, the SupremeCourt found, inter alia, that the defendant City of White Plains (hereinafter the City), as theowner of the garage, had a duty to provide security there.
On this appeal, the City does not seek, nor could it seek, to overturn that part of the SupremeCourt's order which granted Mills' requested relief (see Mixon v TBV, Inc., 76 AD3d 144, 156-157 [2010]). Rather, itchallenges only the Supreme Court's finding that the City had a duty to provide security at thegarage. Inasmuch as findings of fact and conclusions of law are not separately appealable, theappeal must be dismissed (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68NY2d 465, 472-473 [1986]; Matter ofKneip v McWilliams, 71 AD3d 895 [2010]; Matter of Noelia T., 70 AD3d 957 [2010]; Lester & Assoc., P.C. v Eneman, 69AD3d 906, 907 [2010]; Valee v Macina, 280 AD2d 598 [2001]; Naar v Litwak& Co., 260 AD2d 613 [1999]; Matter of County of Westchester v O'Neill, 191 AD2d556, 556-557 [1993]). Dillon, J.P., Balkin, Eng and Cohen, JJ., concur.