Opinion
2013-02-13
Dorothy DEVLIN, respondent, v. Imran IKRAM, doing business as 7–Eleven Store, et al., appellants.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellants. Weiser & Associates, LLP, New York, N.Y. (Steven J. Labell and Edward Spark of counsel), for respondent.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellants. Weiser & Associates, LLP, New York, N.Y. (Steven J. Labell and Edward Spark of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the defendants appeal from an order 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 their motion 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 lot was trivial and not actionable as a matter of law ( see Guidone v. Town of Hempstead, 94 A.D.3d 1054, 942 N.Y.S.2d 632;Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 916 N.Y.S.2d 137). Moreover, the defendants failed to establish, prima facie, that the identified condition was not inherently dangerous as a matter of law ( see Demuth v. Best Buy Stores, L.P., 85 A.D.3d 713, 924 N.Y.S.2d 826;Carson v. Baldwin Union Free School Dist., 77 A.D.3d 878, 910 N.Y.S.2d 117;Klee v. Cablevision Sys. Corp., 77 A.D.3d 794, 909 N.Y.S.2d 539;Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061, 908 N.Y.S.2d 124;Cooper v. American Carpet & Restoration Servs., Inc., 69 A.D.3d 552, 553–554, 895 N.Y.S.2d 96;Grgich v. City of New York, 2 A.D.3d 680, 770 N.Y.S.2d 91). The fact that the condition was open and obvious only raised a triable issue of fact as to the plaintiff's comparative negligence ( see Salomon v. Prainito, 52 A.D.3d 803, 861 N.Y.S.2d 718;Holly v. 7–Eleven, Inc., 40 A.D.3d 1033, 834 N.Y.S.2d 870;Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40). The defendants also failed to establish, prima facie, that they lacked constructive notice of the condition complained of ( see Goodyear v. Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 A.D.3d 551, 927 N.Y.S.2d 373;Schiano v. Mijul, Inc., 79 A.D.3d 726, 726–727, 912 N.Y.S.2d 134;Farrell v. Waldbaum's, Inc., 73 A.D.3d 846, 847, 900 N.Y.S.2d 453;Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222).
Since the defendants failed to meet their initial burden as the movants, the Supreme Court properly denied their motion for summary judgment dismissing the complaint, and it is not necessary to review the sufficiency of the opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).