Opinion
01-13-2016
Sandra CASIANO, appellant, v. ST. MARY'S CHURCH, et al., defendants third-party plaintiffs-respondents; Atlas & Sons Asphalt, Inc., et al., third-party defendants (and another third-party action).
Litman & Litman, P.C., Woodbury, N.Y. (Jeffrey E. Litman of counsel), for appellant. Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (Christine M. Gibbons of counsel), for defendants third-party plaintiffs-respondents. Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Margot L. Ludlam of counsel), for third-party defendants.
Litman & Litman, P.C., Woodbury, N.Y. (Jeffrey E. Litman of counsel), for appellant.Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (Christine M. Gibbons of counsel), for defendants third-party plaintiffs-respondents.
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Margot L. Ludlam of counsel), for third-party defendants.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), entered April 2, 2014, as granted that branch of the motion of the defendants third-party plaintiffs, St. Mary's Church and the Diocese of Rockville Centre, which was for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to the defendants third-party plaintiffs.
The plaintiff alleged that on May 12, 2008, she tripped and fell when she stepped in a hole in a parking lot owned by St. Mary's Church and the Diocese of Rockville Centre (hereinafter together the church defendants). According to the plaintiff, the hole was full of water and covered by leaves. The church defendants moved, inter alia, for summary judgment dismissing the complaint, and the Supreme Court granted that branch of their motion.
The church defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law on the grounds that the condition complained of was not a dangerous condition (see Doughim v. M & U.S. Prop., Inc., 120 A.D.3d 466, 468, 990 N.Y.S.2d 816 ), or that the condition was open and obvious and not inherently dangerous as a matter of law (see Barris v. One Beard St., LLC, 126 A.D.3d 831, 833, 6 N.Y.S.3d 262 ; Gordon v. Pitney Bowes Mgt. Servs., Inc., 94 A.D.3d 813, 815, 942 N.Y.S.2d 155 ; Cassone v. State of New York, 85 A.D.3d 837, 925 N.Y.S.2d 197 ). However, the church defendants did demonstrate their prima facie entitlement to judgment as a matter of law by establishing that they did not create the alleged defective condition or have actual or constructive notice thereof (see Ugbomah v. Edison Parking Corp., 131 A.D.3d 1231, 16 N.Y.S.3d 772 ; Chudinova v. Kleyner, 130 A.D.3d 859, 861, 14 N.Y.S.3d 126 ; Mehta v. Stop & Shop Supermarket Co., LLC, 129 A.D.3d 1037, 1039, 12 N.Y.S.3d 269 ; Kiskiel v. Stone Edge Mgmt., Inc., 129 A.D.3d 672, 674, 11 N.Y.S.3d 207 ). In opposition to this prima facie showing, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the church defendants' motion which was for summary judgment dismissing the complaint.