Opinion
02-18-2015
Olivia MARRICCO, etc., et al., appellants-respondents, v. BEST PLUMBING SUPPLY, INC., doing business as Best Plumbing Tile & Stone, defendant third-party plaintiff-respondent-appellant; Century Bathworks, Inc., third-party defendant-respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants-respondents. Kelly & Meenagh, LLP, Poughkeepsie, N.Y. (John P. Meenagh, Jr., of counsel), for defendant third-party plaintiff-respondent-appellant. Goergen, Manson & McCarthy, Middletown, N.Y. (David M. Manson of counsel), for third-party defendant-respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants-respondents.
Kelly & Meenagh, LLP, Poughkeepsie, N.Y. (John P. Meenagh, Jr., of counsel), for defendant third-party plaintiff-respondent-appellant.
Goergen, Manson & McCarthy, Middletown, N.Y. (David M. Manson of counsel), for third-party defendant-respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Opinion In an action to recover damages for personal injuries, etc., (1) the plaintiffs appeal from an order of the Supreme Court, Westchester County (Giacomo, J.), entered January 7, 2013, which granted the defendant third-party plaintiff's motion for summary judgment dismissing the complaint, granted that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint, and denied, as academic, their cross motion to strike the answer of the defendant third-party plaintiff or to preclude it from asserting certain defenses based upon spoliation of evidence, and (2) the defendant third-party plaintiff cross-appeals from so much of the same order as granted that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint.
ORDERED that the appeal by the plaintiffs from so much of the order as granted that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint is dismissed, as the plaintiffs are not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,
ORDERED that the order is affirmed insofar as reviewed on the appeal and insofar as cross-appealed from; and it is further,
ORDERED that the defendant third-party plaintiff is awarded one bill of costs, payable by the plaintiffs, and the third-party defendant is awarded one bill of costs, payable by the defendant third-party plaintiff. A defendant property owner who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence (see Bravo v. 564 Seneca Ave. Corp., 83 A.D.3d 633, 634, 922 N.Y.S.2d 88 ; Bloomfield v. Jericho Union Free School Dist., 80 A.D.3d 637, 638, 915 N.Y.S.2d 294 ; Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 892 N.Y.S.2d 181 ).
Here, the defendant third-party plaintiff established, prima facie, that it neither created the alleged dangerous condition nor had actual or constructive notice of it (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Quinones v. Federated Dept. Stores, Inc., 92 A.D.3d 931, 932, 939 N.Y.S.2d 134 ; Dos Santos v. Power Auth. of State of N.Y., 85 A.D.3d 718, 721, 924 N.Y.S.2d 558 ; Weinberg v. JAF Color Labs, Inc., 57 A.D.3d 769, 870 N.Y.S.2d 382 ; cf. Karathanasis v. Eastchester Union Free Sch. Dist., 119 A.D.3d 904, 989 N.Y.S.2d 877 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see Von Ohlen v. East Meadow Union Free Sch. Dist., 114 A.D.3d 668, 669, 979 N.Y.S.2d 699 ; Bergin v. Town of Oyster Bay, 51 A.D.3d 698, 699, 858 N.Y.S.2d 318 ; Soldano v. Bayport–Blue Point Union Free School Dist., 29 A.D.3d 891, 891, 815 N.Y.S.2d 712 ).
Accordingly, the Supreme Court properly granted the defendant third-party plaintiff's motion for summary judgment dismissing the complaint, properly granted that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint, and properly denied, as academic, the plaintiffs' cross motion to strike the answer of the defendant third-party plaintiff or to preclude it from asserting certain defenses based upon spoliation of evidence.