| Devlin v Ikram |
| 2013 NY Slip Op 00890 [103 AD3d 682] |
| February 13, 2013 |
| Appellate Division, Second Department |
| Dorothy Devlin, Respondent, v Imran Ikram,Doing Business as 7-Eleven Store, et al., Appellants. |
—[*1] Weiser & Associates, LLP, New York, N.Y. (Steven J. Labell and Edward Spark ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Suffolk County (Tanenbaum, J.), dated November 9, 2011,which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court properly concluded that the defendants, in support of theirmotion for summary judgment dismissing the complaint, failed to establish, prima facie,that the condition identified by the plaintiff as the cause of her fall in their parking lotwas trivial and not actionable as a matter of law (see Guidone v Town of Hempstead, 94 AD3d 1054 [2012];Perez v 655 Montauk, LLC,81 AD3d 619 [2011]). Moreover, the defendants failed to establish, prima facie, thatthe identified condition was not inherently dangerous as a matter of law (see Demuth v Best Buy Stores,L.P., 85 AD3d 713 [2011]; Carson v Baldwin Union Free School Dist., 77 AD3d 878[2010]; Klee v Cablevision Sys.Corp., 77 AD3d 794 [2010]; Villano v Strathmore Terrace Homeowners Assn., Inc., 76AD3d 1061 [2010]; Cooperv American Carpet & Restoration Servs., Inc., 69 AD3d 552, 553-554 [2010];Grgich v City of New York,2 AD3d 680 [2003]). The fact that the condition was open and obvious only raised atriable issue of fact as to the plaintiff's comparative negligence (see Salomon v Prainito, 52AD3d 803 [2008]; Holly v7-Eleven, Inc., 40 AD3d 1033 [2007]; Cupo v Karfunkel, 1 AD3d 48 [2003]). The defendantsalso failed to establish, prima facie, that they lacked constructive notice of the conditioncomplained of (see Goodyear vPutnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 AD3d 551 [2011];Schiano v Mijul, Inc., 79AD3d 726, 726-727 [2010]; Farrell v Waldbaum's, Inc., 73 AD3d 846, 847 [2010]; Birnbaum v New York RacingAssn., Inc., 57 AD3d 598, 598-599 [2008]).
Since the defendants failed to meet their initial burden as the movants, the SupremeCourt properly denied their motion for summary judgment dismissing the complaint, andit is not necessary to review the sufficiency of the opposition papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851 [1985]). Balkin, J.P., Hall, Austin andCohen, JJ., concur.