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Masculine v. BJ's Wholesale Club, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 26, 2004
6 A.D.3d 671 (N.Y. App. Div. 2004)

Opinion

2003-05562.

Decided April 26, 2004.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated May 27, 2003, which granted the defendant's motion for summary judgment dismissing the complaint.

Zeccola Selinger, LLC, Goshen, N.Y. (John S. Selinger of counsel), for appellant.

Rosenblaum Tannenbaum, LLC, White Plains, N.Y. (James F. Biondo of counsel), for respondent.

Before: HOWARD MILLER, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint. The defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing, inter alia, that it did not own, control, or maintain the property where the plaintiff's accident occurred ( see Tomback v. Kew Gardens Assn., 290 A.D.2d 437).

In opposition to this showing, the plaintiff failed to raise a triable issue of fact to support his assertion that the defendant made a special use of the accident site. The plaintiff submitted no evidence to demonstrate that the raised cement slab in question or any portion of the surrounding road was constructed by the defendant, at the defendant's behest, or for the defendant's benefit ( see Kaufman v. Silver, 90 N.Y.2d 204).

H. MILLER, J.P., ADAMS, TOWNES and MASTRO, JJ., concur.


Summaries of

Masculine v. BJ's Wholesale Club, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 26, 2004
6 A.D.3d 671 (N.Y. App. Div. 2004)
Case details for

Masculine v. BJ's Wholesale Club, Inc.

Case Details

Full title:RICHARD MASCULINE, appellant, v. BJ'S WHOLESALE CLUB, INC., respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 26, 2004

Citations

6 A.D.3d 671 (N.Y. App. Div. 2004)
775 N.Y.S.2d 543