Opinion
No. 2022-01706 Index No. 57281/19
02-14-2024
Angelina McKevitt, appellant, v. True North Urgent Care, LLC, respondent, et al., defendant.
Napoli Shkolnik PLLC, New York, NY (Joseph P. Napoli of counsel), for appellant. Kiernan Trebach, LLP, New York, NY (Sim Rivkin of counsel), for respondent.
Napoli Shkolnik PLLC, New York, NY (Joseph P. Napoli of counsel), for appellant.
Kiernan Trebach, LLP, New York, NY (Sim Rivkin of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. ROBERT J. MILLER DEBORAH A. DOWLING LILLIAN WAN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated March 2, 2022. The order, insofar as appealed from, (1) denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendant True North Urgent Care, LLC, and (2) granted the cross-motion of the defendant True North Urgent Care, LLC, for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured at an urgent care facility owned by the defendant True North Urgent Care, LLC (hereinafter True North). The plaintiff commenced this personal injury action alleging that, while at the urgent care facility, she fell when she attempted to sit in a chair with wheels which rolled out from under her. The plaintiff moved, inter alia, for summary judgment on the issue of liability against True North. True North cross-moved for summary judgment dismissing the complaint insofar as asserted against it. By order dated March 2, 2022, the Supreme Court, among other things, denied that branch of the plaintiff's motion and granted True North's cross-motion. The plaintiff appeals.
"In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" (Lezama v 34-15 Parsons Blvd, LLC, 16 A.D.3d 560, 560; see Cashwell v Stop & Shop Supermarket Co., LLC, 219 A.D.3d 795, 796). Although the issue of whether a dangerous or defective condition exists on the property of another is generally a question of fact for the jury (see Trincere v County of Suffolk, 90 N.Y.2d 976, 977), "[s]ummary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous" (Lezama v 34-15 Parsons Blvd, LLC, 16 A.D.3d at 560; see Villalba v Daughney, 214 A.D.3d 843, 844; Wilks v City of New York, 144 A.D.3d 673, 675).
Here, on its cross-motion for summary judgment dismissing the complaint insofar as asserted against it, True North established, prima facie, that there was no dangerous or defective condition that caused the plaintiff's accident (see Villalba v Daughney, 214 A.D.3d at 844; Wilks v City of New York, 144 A.D.3d at 675). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's expert was speculative and insufficient to raise a triable issue of fact (see Boris L. v AMC Entertainment Holdings, Inc., 208 A.D.3d 859, 860).
The plaintiff's remaining contention is improperly raised for the first time on appeal.
Accordingly, the Supreme Court properly granted True North's cross-motion and denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against True North.
BRATHWAITE NELSON, J.P., MILLER, DOWLING and WAN, JJ., concur.