Kempter v. Horton

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Putnam County (O’Rourke, J), dated February 3, 2005, as granted that branch of the motion of the defendant Anesi Realty Corp. which was for summary judgment dismissing the complaint insofar as asserted against it and granted that branch of the motion of the defendants Jeffrey Horton, doing business as Kwick Mart Deli, and Kwick Mart Deli which was for summary judgment dismissing the complaint insofar as asserted against them, and the defendant Anesi [869] Realty Corp. separately appeals from so much of the same order as, in effect, denied as academic that branch of its motion which was for summary judgment on its cross claim for indemnification against the defendants Jeffrey Horton, doing business as Kwick Mart Deli, and Kwick Mart Deli. Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Jeffrey Horton, doing business as Kwick Mart Deli, and Kwick Mart Deli which was for summary judgment dismissing the complaint insofar as asserted against them and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The plaintiff allegedly fell over a single-step riser while entering a delicatessen (hereinafter deli) owned by the defendant Anesi Realty Corp. (hereinafter Anesi) and leased by the defendants Jeffrey Horton, doing business as Kwick Mart Deli, and Kwick Mart Deb (hereinafter Kwick). The single-step riser was about 42 inches away from the glass double-door entry. The plaintiff alleged that it was dark by the entrance and that she did not see the single-step riser before she fell. She did not recall whether there were any overhead lights by the entrance. After she fell, the plaintiff waited inside the deli for her sister-in-law to arrive. As she waited, she saw a woman stumble over the same step. When the plaintiffs sister-in-law arrived at the deli, she too stumbled over the same step. Anesi and Kwick submitted evidence to the effect that there were fluorescent lights on the ceiling above the single-step riser. However, no testimony was provided as to whether the lights had been turned on or whether they were working on the day of the accident. Kwick failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law as a triable issue of fact exists as to whether the area by the single-step riser was lit and whether the single-step riser was open and obvious (see Miner v Northport Yacht Club, 15 AD3d 362 [2005]; Scher v Stropoli, 7 AD3d 777 [2004]). Accordingly, the Supreme Court should have denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it. Anesi, the out-of-possession landlord, on the other hand, submitted evidence sufficient to establish its entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Kramer v Ash Clothing, 213 AD2d 600 [1995]). In opposition to the motion, the plaintiff failed to [870] submit evidence sufficient to raise a triable issue of fact (see Prisco v Long Is. Univ., 258 AD2d 451 [1999]; Lester v Waterman, 242 AD2d 683 [1997]). In light of our determination, we need not reach the parties’ remaining contentions. Miller, J.P., Luciano and Co vello, JJ., concur.