Opinion
13170 Index No. 450723/18 Case No. 2019-4126
02-18-2021
Marie PHILANTHROPE, Plaintiff–Respondent, v. Papa John's PIZZA, et al., Defendants, Papa John's USA, Inc., Defendant–Appellant.
McManus Ateshoglou Aiello & Apostolakos, PLLC, New York (Joshua Talcovitz of counsel), for appellant.
McManus Ateshoglou Aiello & Apostolakos, PLLC, New York (Joshua Talcovitz of counsel), for appellant.
Renwick, J.P., Kern, Singh, Shulman, JJ.
Order, Supreme Court, New York County (Frank P. Nervo, J.), entered April 15, 2019, which denied defendant Papa John's USA, Inc.'s motion pursuant to CPLR 3211(a)(1) and (a)(7) to dismiss the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
In this premises slip-and-fall case, defendant Papa John's USA, Inc. submitted documentary evidence (i.e., a lease, deed, franchise agreement, and other documents) on its unopposed motion to dismiss that demonstrates that it was not a party to the franchise arrangement, had no role therein, and that it was not a party to the lease agreement, which was executed by the franchisee and the owner of the commercial premises. That evidence conclusively refutes the allegations that it had any role in the ownership, control, or maintenance of the leased premises where plaintiff was allegedly injured ( see Gulf & W. Corp. v. New York Times Co., 81 A.D.2d 772, 773, 439 N.Y.S.2d 13 [1st Dept. 1981] ).