| Marinkovic v IPC Intl. of Ill. |
| 2012 NY Slip Op 03416 [95 AD3d 839] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Alexandra Marinkovic, Respondent, v IPC International ofIllinois et al., Appellants. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Edward J.Nitkewicz of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Phelan, J.), entered April 1, 2011, which granted theplaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiff's motion which was for summary judgment on the issue of liability insofaras asserted against the defendants Simon Property Group, L.P., Simon Property Group, Inc.,Simon Property Group Administrative Services Partnership, L.P., Roosevelt Field Partners, LLC,Roosevelt Field Development, LLC, and Roosevelt Field Association, Inc., and substitutingtherefor a provision denying that branch of the motion; as so modified, the order is affirmed,without costs or disbursements.
The plaintiff allegedly sustained injuries when a mall security guard, the defendant John Doe,riding on a Segway, a two-wheeled transportation device, struck her from behind while she waswalking down a corridor in the Roosevelt Field Mall. The security guard allegedly was employedby the defendants IPC International of Illionis and IPC International, Inc.
In support of her motion for summary judgment on the issue of liability, the plaintiffestablished her prima facie entitlement to judgment as a matter of law against the defendants IPCInternational of Illinois, IPC International, Inc., and John Doe by demonstrating, prima facie, thatthe security guard's negligent operation of the Segway was the sole proximate cause of theaccident and that she exercised due care at the time of the accident (see generally Alvarez vProspect Hosp., 68 NY2d 320 [1986]). In opposition, the defendants failed to raise a triableissue of fact. The defendants' objection to the admissibility of the plaintiff's deposition transcriptis being raised for the first time on appeal and is therefore not properly before this Court (see Lowe v Meacham Child Care &Learning Ctr., Inc., 74 AD3d 1029 [2010]; Ross v Gidwani, 47 AD3d 912 [2008]).
However, the plaintiff failed to establish her prima facie entitlement to judgment as a matterof law on the issue of liability against the defendants Simon Property Group, L.P., Simon [*2]Property Group, Inc., Simon Property Group AdministrativeServices Partnership, L.P., Roosevelt Field Partners, LLC, Roosevelt Field Development, LLC,and Roosevelt Field Association, Inc. (hereinafter collectively the Simon defendants). Theplaintiff failed to submit evidence in admissible form to establish the Simon defendants' liability,if any, with respect to the accident. Since the plaintiff failed to meet her prima facie burden as tothe Simon defendants, that branch of her motion which was for summary judgment on the issueof liability insofar as asserted against those defendants should have been denied, without regardto the sufficiency of the defendants' opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Balkin, J.P., Leventhal, Roman and Sgroi, JJ., concur.