Masculine v. BJ's Wholesale Club, Inc.

6 A.D.3d 671, 775 N.Y.S.2d 543

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated May 27, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. The defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing, inter alia, that it did not own, control, or maintain the property where the plaintiffs accident occurred (see Tomback v Kew Gardens Assn., 290 AD2d 437 [2002]).

In opposition to this showing, the plaintiff failed to raise a triable issue of fact to support his assertion that the defendant made a special use of the accident site. The plaintiff submitted no evidence to demonstrate that the raised cement slab in question or any portion of the surrounding road was constructed by the defendant, at the defendant’s behest, or for the defendant’s benefit (see Kaufman v Silver, 90 NY2d 204 [1997]). H. Miller, J.P., Adams, Townes and Mastro, JJ., concur.