Martinez v Asta Surgical Chemists, Inc.

Martinez v Asta Surgical Chemists, Inc. 2012 NY Slip Op 03814 Decided on May 15, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 15, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RUTH C. BALKIN
ARIEL E. BELEN
CHERYL E. CHAMBERS, JJ.
2011-01148
(Index No. 14862/08)

[*1]Margarita Martinez, plaintiff-respondent,

v

Asta Surgical Chemists, Inc., doing business as Dale Chemists, defendant-respondent, Franciscan Construction Corp., appellant, et al., defendant.




Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville,
N.Y. (John J. Ullrich of counsel), for appellant.
Jonathan Silver, Kew Gardens, N.Y., for plaintiff-respondent.
Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa De
Lindsay of counsel), for defendant-
respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Franciscan Construction Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), entered December 2, 2010, as denied those branches of its motion which were for summary judgment dismissing so much of the complaint as sought to recover damages for common-law negligence and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The defendant Franciscan Construction Corp. (hereinafter the appellant) failed to make a prima facie showing that it did not create the alleged hazardous condition that caused the plaintiff to slip and fall (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Van Dina v St. Francis Hosp., Roslyn, N.Y., 45 AD3d 673; Dugan v Crown Broadway, LLC, 33 AD3d 656, 657; Avellino v TrizecHahn Newport, 5 AD3d 519). Since the appellant failed to meet its initial burden, it is not necessary to review the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Willis v New York Racing Assn, Inc., 9 AD3d 406).

Accordingly, the Supreme Court properly denied those branches of the appellant's motion which were for summary judgment dismissing so much of the complaint as sought to recover damages for common-law negligence and all cross claims insofar as asserted against it.
DILLON, J.P., BALKIN, BELEN and CHAMBERS, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court