Opinion
21539/2008.
Decided August 11, 2011.
Law Office of Charles M. Hymowitz, P.C., by Charles M. Hymowitz, Esq., Brooklyn, New York, for the Plaintiff.
Jeffrey Miller Associates, P.C., by Zana Eldada, Esq., New York, NY, for the Defendants Sophie D. Ltd. d/b/a Sophie's Creations and Marties Realty Co.
Huneke Rodriguez, by Robert P. Louttit, Esq., One Huntington Quadrangle, Melville, New York, for the Defendant Kosson Glass, Inc.
This is an action to recover for personal injuries that the plaintiff Laura Sandler allegedly sustained on October 20, 2007, at the premises located at 185-12 Union Turnpike, in Queens County, New York. Sandler has alleged that she was injured by the front entrance door at the premises. Defendant Marties Realty Co. ("Marties") was the landlord of the subject premises where defendant Sophie D. Ltd., doing business as Sophie's Creations ("Sophie") operated a business. After Sophie leased the premises from Marties, Sophie hired defendant In Style Living Inc. to design the interior of the store, which, in turn, hired Kosson Glass Inc. ("Kosson") to install the front entrance door.
Defendants Sophie and Marties have conceded in their papers that their cross motion for summary judgment is untimely and that they have failed to demonstrate good cause for the delay (CPLR 3212[a]; see, Brill v City of New York , 2 NY3d 648 , 652; Necco v Elmcor Youth Adult Activities, Inc., 2011 WL 1832803, 2011 NY Slip Op 50846(U) [Sup Ct Queens County 2011] [decision by the undersigned, citing and discussing cases]).
Furthermore, contrary to their contention of defendants Sophie and Marties, the issues raised on their cross motion are not nearly identical to those raised in Kosson's timely motion for summary judgment ( see, e.g., Teitelbaum v Crown Hgts. Ass'n for the Betterment , 84 AD3d 935 , 937 [2nd Dept. 2011]; Tapia v Prudential Richard Albert Realtors , 79 AD3d 735 [2nd Dept. 2010]). Moreover, Sophie's and Marties' cross motion is an improper vehicle to seek affirmative relief against a non-moving party (CPLR 2215; see, Terio v Spodek , 25 AD3d 781 , 785 [2nd Dept. 2006]; Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844 [2nd Dept. 1986]). The Court, therefore, will not consider Sophie's and Marties' untimely cross motion for summary judgment.
On its motion, Kosson "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; see, Smalls v AJI Indus., Inc. , 10 NY3d 733 , 735). "A property owner is charged with the duty of maintaining its premises in a reasonably safe condition" ( Cassone v State, 85 AD3d 837 [2nd Dept. 2011]). "To be entitled to summary judgment, [Kosson] is required to show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises" ( id; see, Gradwohl v Stop Shop Supermarket Co., LLC , 70 AD3d 634 , 636 [2nd Dept. 2010]).
Upon the foregoing papers, in support of its motion, Kosson has relied upon plaintiff's deposition testimony. Kosson, however, has failed to demonstrate in its motion papers that it had previously forwarded a transcript of plaintiff's deposition testimony to her for her review, in compliance with CPLR 3116 (a) ( see, Pina v Flik Intl. Corp. , 25 AD3d 772, 773 [2nd Dept. 2006]). Kosson has failed to submit any other evidence in its motion papers, such as an affidavit by a person having personal knowledge of the facts, in order to establish its prima facie burden (CPLR 3212[b]).
Kosson may not merely point to the deficiencies in plaintiff's case to satisfy its burden ( see, Totten v Cumberland Farms, Inc. , 57 AD3d 653 , 654 [2nd Dept. 2008]), and it may not rely upon evidence submitted for the first time in its reply papers to meet its burden ( see, Acquisition Co., LLC v 627 Greenwich, LLC , 85 AD3d 645 [1st Dept. 2011]; Burke v Moran , 85 AD3d 1710 [2nd Dept. 2011]; Mattern v Hornell Brewing Co., Inc. , 84 AD3d 1323 [2nd Dept. 2011]; Cali v City of Poughkeepsie , 84 AD3d 1229 [2nd Dept. 2011]; David v Bryon , 56 AD3d 413 , 414-415 [2nd Dept. 2008]; Rengifo v City of New York , 7 AD3d 773 [2nd Dept. 2004]; Zou De Hu v Eng, 30 Misc 3d 1223(A), 2011 WL 534468, 2011 NY Slip Op. 50169(U) [Sup Ct Queens County 2011] [decision by the undersigned]; see, e.g., HSBC Bank U.S.A. v Baksh, 29 Misc 3d 1238(A), 2010 WL 5173185, 2010 NY Slip Op 52194(U) [Sup [Sup Ct Queens County 2010] [decision by the undersigned]). Kosson also may not rely, in its reply papers, upon evidence submitted by defendants Sophie and Marties in their reply papers to their untimely cross motion.
Accordingly, the motion and cross motion for summary judgment are denied.
The foregoing constitutes the decision, order, and opinion of the Court.