Brennan v. American Continental Properties, Inc.

277 A.D.2d 270, 715 N.Y.S.2d 875, 2000 N.Y. App. Div. LEXIS 11708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants American Continental Properties, Inc., and Rockland Center Associates appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated September 30, 1999, as, upon reargument, adhered to the determination in a prior order of the same court, dated April 21, 1999, granting the motion of the defendant Paul Bitts Co., Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and denying their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the plaintiff cross-appeals from so much of the same order as, upon reargument, adhered to so much of the determination in the order dated April 21, 1999, as granted the motion of the defendant Paul Bitts Co., Inc., for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the appeal by the defendants American Continental Properties, Inc., and Rockland Center Associates from so much of the order dated September 30, 1999, as, upon reargument, adhered to so much of the determination in the prior order dated April 21, 1999, as granted that branch of the motion of the defendant Paul Bitts Co., Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, is dismissed, as those defendants are not aggrieved by that part of the order (see, CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as reviewed on the appeal and insofar as cross appealed from; and it is further,

Ordered that the respondent Paul Bitts Co., Inc., is awarded one bill of costs.

The Supreme Court properly granted the motion of the defendant Paul Bitts Co., Inc., which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it since that defendant established its entitlement to judgment as a matter of law and the appellants failed to raise any triable issues of fact (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). Moreover, the Supreme Court properly denied the cross motion of the defendants American Continental Properties, Inc., and Rock-land Center Associates for summary judgment since issues of fact exist as to whether they knew or should have known of the icy condition upon which the plaintiff allegedly slipped and fell and, if so, whether they reasonably attempted to remedy the condition (see, CPLR 3212 [b]; Zuckerman v City of New York, supra; McKeown v Stanan Mgt. Corp., 274 AD2d 460). Mangano, P. J., Ritter, S. Miller and H. Miller, JJ., concur.