Birmingham v. Linden Plaza Hous. Co.

210 A.D.3d 853

179 N.Y.S.3d 98

Maiya BIRMINGHAM, etc., appellant,

v.LINDEN PLAZA HOUSING CO., et al., respondents.

2020–06095

Index No. 7517/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 18, 2022

November 16, 2022

William Schwitzer & Associates, P.C., New York, NY (Howard R. Cohen and Travis Wong of counsel), for appellant.

Quintairos Prieto Wood & Boyer, P.A., New York, NY (Tanya M. Branch and Jyoti M. Halsband of counsel), for respondent Linden Plaza Housing Co.

O'Connor O'Connor Hintz & Deveney, LLP, Melville, NY (Eileen Baumgartner of counsel), for respondent Fine Fare Supermarket.

BETSY BARROS, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lorna J. McAllister, J.), dated June 18, 2020. The order, insofar as appealed from, granted those branches of the defendants’ separate motions which were for summary judgment dismissing the amended complaint insofar as asserted against each of them.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendant Linden Plaza Housing Co. which was for summary judgment dismissing the amended complaint insofar as asserted against it is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.

In May 2014, Alethea Rea Haynie (hereinafter the decedent) commenced this action to recover damages for personal injuries, alleging that she was injured by a security gate located on property owned by the defendant Linden Plaza Housing Co. (hereinafter Linden Plaza) and subleased to the defendant Fine Fare Supermarket (hereafter Fine Fare). In April 2016, while this action was pending, the decedent died from causes unrelated to the alleged incident. After the administrator of the decedent's estate was substituted as the plaintiff, Fine Fare and Linden Plaza separately moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against each of them. The plaintiff opposed Fine Fare's motion, but did not oppose Linden Plaza's motion. In an order dated June 18, 2020, the Supreme Court, among other things, granted those branches of the defendants’ separate motions which were for summary judgment dismissing the amended complaint insofar as asserted against each of them. The plaintiff appeals.

The appeal from so much of the order as granted that branch of Linden Plaza's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it must be dismissed. As the plaintiff did not oppose that branch of Linden Plaza's motion, she is not aggrieved by the order to the extent that it granted that branch of the motion (see CPLR 5511 ; Ponce–Francisco v. Plainview–Old Bethpage Cent. School Dist., 83 A.D.3d 683, 684, 920 N.Y.S.2d 406 ; Mixon v. TBV., Inc., 76 A.D.3d at 156–157, 904 N.Y.S.2d 132 ; Giraldo v. Morrisey, 63 A.D.3d 784, 785, 880 N.Y.S.2d 512 ).

The Supreme Court properly granted that branch of Fine Fare's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it. Fine Fare met its burden of...