Desiderio v. Foodtown Supermarket

—In an action to recover damages for personal injuries, etc., the defendant Mel Markets, Inc., s/h/a Foodtown Supermarket, appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Nassau County (Davis, J.), entered December 16, 1998, which, inter alia, denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the defendant LaShelda Maintenance separately appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Ordered that the order is modified by deleting the provisions thereof denying the cross motions, and substituting therefor provisions granting the cross motions; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the respondents to the appellants, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed. After the appellants established prima facie that they were entitled to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether the appellants created the alleged defective condition which caused her to fall or had actual or constructive knowledge of this condition. Accordingly, the appellants are entitled to summary judgment (see, Amadio v Pathmark Stores, 253 AD2d 834; Skay v Public Lib., 238 AD2d 397). In light of our determination, we do not reach the remaining contentions of the appellant Mel Markets, Inc., s/h/a Foodtown Supermarket. Santucci, J. P., Joy, Goldstein and Feuerstein, JJ., concur.