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Dina v. Olsen

Supreme Court of New York, Second Department

May 15, 2013

George Van Dina, et al., appellants,
v.
Donald Olsen, respondent. Index No. 45983/08

John J. Appell, New York, N.Y. (Louis A. Badolato of counsel), for appellants.

McAndrew, Conboy & Prisco, LLP, Melville, N.Y. (Mary C. Azzaretto of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Rebolini, J.), entered April 4, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

A property owner has an obligation to maintain his or her property in a reasonably safe condition (see Basso v Miller, 40 N.Y.2d 233, 241). To be entitled to summary judgment in a slip-and-fall action, "a defendant is required to show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises" (Cassone v State of New York, 85 A.D.3d 837, 838; see Gradwohl v Stop & Shop Supermarket Co., LLC, 70 A.D.3d 634, 636).

Here, the defendant's submissions failed to eliminate all triable issues of fact so as to establish, prima facie, his entitlement to judgment as a matter of law (see Lessey v New York City Tr. Auth., 53 A.D.3d 569, 570; Khamis v CG Foods, Inc., 49 A.D.3d 606, 607; cf. Rovegno v Church of Assumption, 268 A.D.2d 576, 576-577). Since the defendant failed to satisfy his initial burden of proof, it is unnecessary to analyze the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851). Accordingly, the defendant's motion for summary judgment should have been denied.

RIVERA, J.P., LEVENTHAL, AUSTIN and MILLER, JJ., concur.


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