Opinion
2019–10511 Index No. 9297/14
01-25-2023
Dennis CHIAMULERA, respondent, v. NEW WINDSOR MALL, appellant, et al., defendants.
Burke, Scolamiero & Hurd, LLP, Albany, NY (Steven V. DeBraccio of counsel), for appellant. Patrick S. Owen, PLLC, Middletown, NY, for respondent.
Burke, Scolamiero & Hurd, LLP, Albany, NY (Steven V. DeBraccio of counsel), for appellant.
Patrick S. Owen, PLLC, Middletown, NY, for respondent.
VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, LARA J. GENOVESI, BARRY E. WARHIT, JJ.
DECISION & ORDER In a consolidated action to recover damages for personal injuries, the defendant New Windsor Mall appeals from an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated June 17, 2019. The order, insofar as appealed from, denied that branch of the motion of the defendant New Windsor Mall, made jointly with Frederick J. Kass, which was for summary judgment dismissing the complaint insofar as asserted against the defendant New Windsor Mall.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the defendant New Windsor Mall, made jointly with Frederick J. Kass, which was for summary judgment dismissing the complaint insofar as asserted against the defendant New Windsor Mall is granted, and upon searching the record, summary judgment is awarded to the defendant Howard Alan Kave, as representative of the estate of Frederick J. Kass, dismissing the complaint insofar as asserted against that defendant.
On February 1, 2013, the plaintiff allegedly was injured when he tripped and fell on "plastic strapping" on the sidewalk in front of a deli located in a strip mall owned by New Windsor Mall (hereinafter the Mall) and Frederick J. Kass. The plaintiff, who worked at the deli, testified at his deposition that he did not see any strapping or other debris in front of the deli at any time prior to his fall. The plaintiff believed the strapping came from boxes containing materials for construction work, which allegedly was being performed on the roadway in front of the Mall by, among others, the defendants Whispering Pines Development Corp. and Whispering Pines, LLC.
The plaintiff commenced two separate personal injury actions against, among others, the Mall and Kass, which were later consolidated. Thereafter, the Mall moved jointly with Kass, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. In the order appealed from, as relevant to this appeal, the Supreme Court denied the motion. The Mall appeals.
During the pendency of this action, Kass died, and Howard Alan Kave, as representative of Kass's estate, was substituted for Kass.
"[A] defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" ( Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 ; see Madden v. 3240 Henry Hudson Parkway, LLC, 192 A.D.3d 1095, 141 N.Y.S.3d 369 ). Here, the evidence submitted by the Mall and Kass in support of their motion, including the transcript of the deposition testimony of Kass regarding his inspections of the area in question and the transcript of the deposition testimony of the plaintiff, established, prima facie, that the Mall and Kass neither created nor had actual or constructive notice of the alleged dangerous condition of the strapping (see Rosa v. Food Dynasty, 307 A.D.2d 1031, 1031, 763 N.Y.S.2d 756 ; Kraemer v. K–Mart Corp., 226 A.D.2d 590, 591, 641 N.Y.S.2d 130 ; Rotunno v. Pathmark, 220 A.D.2d 570, 571, 632 N.Y.S.2d 224 ). In opposition, the plaintiff failed to raise a triable issue of fact. Therefore, the Supreme Court should have granted that branch of the Mall's motion, made jointly with Kass, which was for summary judgment dismissing the complaint insofar as asserted against the Mall.
Although Kass did not properly appeal from the order, this Court has the authority to search the record and grant summary judgment to a nonappealing party with respect to an issue that was the subject of a motion before the Supreme Court (see Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–430, 654 N.Y.S.2d 335, 676 N.E.2d 1178 ; Merritt Hill Vineyards Inc. v. Windy Hgts. Vineyard, Inc., 61 N.Y.2d 106, 110–111, 472 N.Y.S.2d 592, 460 N.E.2d 1077 ; Theo v. Vasquez, 136 A.D.3d 795, 796, 26 N.Y.S.3d 85 ). Upon searching the record, we award Howard Alan Kave, as representative of Kass's estate, summary judgment dismissing the complaint insofar as asserted against him based upon the same rationale which supports the award of summary judgment in favor of the Mall (see Rodriguez v. Kimco Centereach 605 , Inc. , 298 A.D.2d 571, 572, 749 N.Y.S.2d 543 ).
BRATHWAITE NELSON, J.P., MILLER, GENOVESI and WARHIT, JJ., concur.