Habinowski v. Chin

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), entered May 20, 2004, as granted the motion of the defendants Tommy Hoy Moon Chin, Kin Yee Sonia Chin, and Brenda Overfield-Fragner, doing business as Violet Ave. Deli, for summary judgment dismissing the complaint insofar as asserted against them and that branch of the motion of the defendants Yan Tung Yeung and 01 Yu Yeung which was for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is affirmed insofar as appealed from, with one bill of costs. In response to the defendants’ prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether the defendants had constructive notice of, or created, the icy condition in the parking lot where the injured plaintiff allegedly slipped and fell (see Simmons v Metropolitan Life Ins. Co., 84 NY2d 972 [1994]; DeVivo v Sparago, 287 AD2d 535 [2001]; Alexander v City of New York, 277 AD2d 334 [2000]; Koraca v Heritage Hills Condominium Assn. #11, 308 AD2d 565 [2003]). Moreover, the defendants Tommy Hoy Moon Chin and Kin Yee Sonia Chin established that they were out-of-possession landlords, and the 609 plaintiffs failed to raise a triable issue of fact in opposition (see Eckers v Suede, 294 AD2d 533 [2002]; Wright v Feinblum, 220 AD2d 660 [1995]). Accordingly the Supreme Court properly granted the motion of the defendants Tommy Hoy Moon Chin, Kin Yee Sonia Chin, and Brenda Overfield-Fragner, doing business as Violet Ave. Deli, for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the motion of the defendants Yan Tung Yeung and 01 Yu Yeung which was for summary judgment dismissing the complaint insofar as asserted against them. Cozier, J.P., Krausman, Skelos and Lunn, JJ., concur.