Casiano v St. Mary's Church

Casiano v St. Mary's Church 2016 NY Slip Op 00146 Decided on January 13, 2016 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 January 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2014-05258
(Index No. 8986/09)

[*1]Sandra Casiano, appellant,

v

St. Mary's Church, et al., defendants third-party plaintiffs-respondents; Atlas & Sons Asphalt, Inc., et al., third-party defendants (and another third-party action).

Litman & Litman, P.C., Woodbury, NY (Jeffrey E. Litman of counsel), for appellant.

Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, NY (Christine M. Gibbons of counsel), for defendants third-party plaintiffs-respondents.

Baxter Smith & Shapiro, P.C., Hicksville, NY (Margot L. Ludlam of counsel), for third-party defendants.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), entered April 2, 2014, as granted that branch of the motion of the defendants third-party plaintiffs, St. Mary's Church and the Diocese of Rockville Centre, which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to the defendants third-party plaintiffs.

The plaintiff alleged that on May 12, 2008, she tripped and fell when she stepped in a hole in a parking lot owned by St. Mary's Church and the Diocese of Rockville Centre (hereinafter together the church defendants). According to the plaintiff, the hole was full of water and covered by leaves. The church defendants moved, inter alia, for summary judgment dismissing the complaint, and the Supreme Court granted that branch of their motion.

The church defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law on the grounds that the condition complained of was not a dangerous condition (see Doughim v M & US Prop., Inc., 120 AD3d 466, 468), or that the condition was open and obvious and not inherently dangerous as a matter of law (see Barris v One Beard St., LLC, 126 AD3d 831, 833; Gordon v Pitney Bowes Mgt. Servs., Inc., 94 AD3d 813, 815; Cassone v State of New York, 85 AD3d 837). However, the church defendants did demonstrate their prima facie entitlement to judgment as a matter of law by establishing that they did not create the alleged defective condition or have actual or constructive notice thereof (see Ugbomah v Edison Parking Corp., 131 AD3d 1231; Chudinova v Kleyner, 130 AD3d 859, 861; Mehta v Stop & Shop Supermarket Co., LLC, 129 AD3d 1037, 1039; Kiskiel v Stone Edge Mgmt., Inc., 129 AD3d 672, 674). In opposition to this prima facie showing, the plaintiff failed to raise a triable issue of fact. [*2]Accordingly, the Supreme Court properly granted that branch of the church defendants' motion which was for summary judgment dismissing the complaint.

BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court