Touloupis v. Sears, Roebuck & Co.

155 A.D.3d 807

63 N.Y.S.3d 518

Phillip TOULOUPIS, as administrator of the estate of Fotios Touloupis, appellant,

v.SEARS, Roebuck and Co., doing business as The Sears Auto Center, et al., respondents.

2015-10028, Index No. 29750/10.

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

Nov. 8, 2017.

Trolman, Glaser & Lichtman, P.C., New York, NY (Tina M. Wells of counsel), for appellant.

O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, NY ( Eileen M. Baumgartner and Eugene Morenus of counsel), for respondents.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (DiBella, J.), entered September 15, 2015, as granted that branch of the motion of the defendant Sears, Roebuck and Co., doing business as The Sears Auto Center, which was for summary judgment dismissing the amended complaint insofar as asserted against it and, upon searching the record, awarded summary judgment to the defendant Simon Property Group, Inc., dismissing the amended complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff's decedent commenced this action to recover damages for personal injuries allegedly sustained by him when he tripped and fell outside the Sears Auto Center in the Ocean County Mall in New Jersey. The amended complaint alleged that the defendants, Sears, Roebuck and Co., doing business as The Sears Auto Center (hereinafter Sears), and Simon Property Group, Inc. (hereinafter Simon), owned the real property upon which the accident occurred. Sears moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against it. The Supreme Court granted that branch of the motion and, upon searching the record, awarded summary judgment to Simon dismissing the amended complaint insofar as asserted against it.

"In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" ( Lezama v. 34–15 Parsons Blvd, LLC, 16 A.D.3d 560, 560, 792 N.Y.S.2d 123 ; see Wilks v. City of New York, 144 A.D.3d 673, 674, 40 N.Y.S.3d 504 ; Mucciariello v. A & D Hylan Blvd. Assoc., LLC, 133 A.D.3d 726, 726–727, 19 N.Y.S.3d 574 ; Witkowski v. Island Trees Pub. Lib., 125 A.D.3d 768, 769, 4 N.Y.S.3d 65 ). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Wilks v. City of New York, 144 A.D.3d at 674, 40 N.Y.S.3d 504; Witkowski v. Island Trees Pub. Lib., 125 A.D.3d at 769, 4 N.Y.S.3d 65 ; Guerrieri v. Summa, 193 A.D.2d 647, 647, 598 N.Y.S.2d 4 ). However, "[s]ummary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous" ( Lezama v. 34–15 Parsons Blvd, LLC, 16 A.D.3d at 560, 792 N.Y.S.2d 123 ; see Wilks v. City of New York, 144 A.D.3d at 674, 40 N.Y.S.3d 504; Witkowski v. Island Trees Pub. Lib., 125 A.D.3d at 769, 4 N.Y.S.3d 65 ). A defendant can also " ‘make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation’ " ( Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863–864, 5 N.Y.S.3d 302, quoting Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 ; see Vojvodic v. City of New York, 148 A.D.3d 1086, 1087, 51 N.Y.S.3d 534 ; Hahn v. Go Go Bus Tours, Inc., 144 A.D.3d 748, 748–749, 40 N.Y.S.3d 549 ; Singh v. City of New York, 136 A.D.3d 641, 642–643, 24 N.Y.S.3d 407 ; Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747 ).

Here, Sears established, prima facie, that there was no dangerous...