Orden v. Mckasty

55 A.D.3d 725, 864 N.Y.S.2d 782

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 2008
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants Wendy Burnett and Mark Burnett appeal from an order of the Supreme Court, Suffolk County (Mayer, J.), dated August 31, 2007, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs.

The defendants Wendy Burnett and Mark Burnett failed to meet their prima facie burden of establishing that they did not have constructive notice of the allegedly defective stairway where the plaintiff alleges she slipped and fell (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656 [2004]). Accordingly, the Supreme Court correctly denied the Burnetts’ motion for summary judgment.

The issue raised on appeal by the defendant Gail R. McKasty as to whether she was an out-of-possession landlord was not before the Supreme Court, and therefore we have no authority to search the record and award summary judgment to her on this issue (see CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; cf. Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112 [1984]; M.S.B. Dev. Co., Inc. v Lopes, 38 AD3d 723, 725-726 [2007]).

The parties’ remaining contentions are without merit. Prudenti, P.J., Santucci, McCarthy and Chambers, JJ., concur.