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Ford v. Benevolent & Protective Order of Elks

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 2, 2010

KENNETH FORD, ET AL., APPELLANTS,
v.
BENEVOLENT & PROTECTIVE ORDER OF ELKS, ETC., RESPONDENT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Putnam County (O'Rourke, J.), dated April 21, 2009, which granted the defendant's motion for summary judgment dismissing the complaint, and (2), as limited by their brief, from so much of an order of the same court dated June 19, 2009, as, upon reargument, adhered to the original determination.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL & PLUMMER E. LOTT, JJ.

(Index No. 572/08)

DECISION & ORDER

ORDERED that the appeal from the order dated April 21, 2009, is dismissed, as that order was superseded by the order dated June 19, 2009, made upon reargument; and it is further,

ORDERED that the order dated June 19, 2009, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The plaintiffs commenced this personal injury action after the injured plaintiff tripped and fell on a stair at the defendant's premises. The plaintiffs alleged that the injured plaintiff's alleged injuries were caused by the lack of a handrail, and that a handrail was required by law.

In moving for summary judgment dismissing the complaint, the defendant demonstrated its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), by establishing that it was not negligent. In this regard, the defendant established that a handrail was not required by Putnam County or local law (cf. Velez v 955 Tenants Stockholders, Inc., 66 AD3d 1005, 1006; Swerdlow v WSK Props. Corp., 5 AD3d 587, 587-588). In opposing the motion, and in moving for leave to reargue, the plaintiff failed to demonstrate the existence of a triable issue of fact as to whether the defendant was negligent (see Alvarez v Prospect Hosp., 68 NY2d at 324). Accordingly, upon reargument, the Supreme Court properly adhered to its original determination granting the defendant's motion for summary judgment dismissing the complaint.

SKELOS, J.P., BALKIN, LEVENTHAL and LOTT, JJ., concur.

20100202

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