Summary
In Buckley v Rockefeller Group (143 A.D.2d 623), summary judgment was denied because the defendant, unlike the case at bar, failed to produce a lease or other documentation indicating the transfer of the operation and control of the building in which the plaintiff fell to another party and therefore failed to make a prima facie showing of entitlement as to a matter of law.
Summary of this case from Giacco v. Noteworthy CompanyOpinion
October 3, 1988
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs brought this action to recover damages after the plaintiff Rose Buckley fell on the wet floor of a lobby of a building allegedly owned, operated and controlled by the appellants. Although the appellants admitted ownership of the premises, they denied that they in any way operated or controlled the building. Since the only proof offered by the appellants to support their contention that they did not operate or control the premises was the unsubstantiated conclusory testimony of an employee at an abbreviated examination before trial, the Supreme Court properly denied the appellants' motion for summary judgment (CPLR 3212 [b]; Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851; Fox v Wyeth Labs., 129 A.D.2d 611; Raia Indus. v Young, 124 A.D.2d 722; Royal v Brooklyn Union Gas Co., 122 A.D.2d 132). The appellants failed to produce a lease or other documentation indicating the transfer of the operation and control of the building to another party and therefore failed to make a prima facie showing of entitlement to judgment as a matter of law (cf., McGill v Caldors, Inc., 135 A.D.2d 1041; Bellen v Lomanto, 125 A.D.2d 905, lv denied 69 N.Y.2d 610). Since a triable issue of fact remains with regard to the appellants' liability in this action, the motion for summary judgment was properly denied.
The awarding of costs to the plaintiffs in this case did not constitute an improvident exercise of discretion (CPLR 8106; Carp v Marcus, 116 A.D.2d 854; Matter of Kavares [MVAIC], 29 A.D.2d 68, affd sub nom. Matter of McEntee [MVAIC], 28 N.Y.2d 939; England v Gradowitz Bros. Realty Corp., 137 Misc.2d 21; Siegel, N Y Prac § 414). Kooper, J.P., Sullivan, Harwood and Balletta, JJ., concur.