Franks v. G & H Real Estate Holding Corp., 2004-00554.

• Decision Date: 28 March 2005
• Docket Number: 2004-00554.
• Parties: LIZZY FRANKS et al., Respondents, v. G & H REAL ESTATE HOLDING CORP. et al., Respondents, and ECKERD CORP., Doing Business as GENOVESE DRUG STORE, #5514, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 619

793 N.Y.S.2d 61

2005 NY Slip Op 02431

LIZZY FRANKS et al., Respondents, v. G & H REAL ESTATE HOLDING CORP. et al., Respondents, and ECKERD CORP., Doing Business as GENOVESE DRUG STORE, #5514, et al., Appellants.

2004-00554.

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 28, 2005.

In an action to recover damages for personal injuries, etc., the defendant Eckerd Corp., doing business as Genovese Drug Store, #5514, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Glover, J.), dated December 8, 2003, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the defendants Mr. China, Inc., doing business as Mr. China Bridal Registry, and North Shore True Value Hardware separately appeal, as limited by their briefs, from so much of the same order as denied their motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is modified, on the law, by deleting the provision thereof denying the motion of the defendant Eckerd Corp., doing business as Genovese Drug Store, #5514, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and substituting therefor a provision granting that motion; as so modified, the order is affirmed, with one bill of costs to the appellant Eckerd Corp., doing business as Genovese Drug Store, #5514, payable by the defendants North Shore True Value Hardware and Mr. China, Inc., doing business as Mr. China Bridal Registry, the complaint and all cross claims are dismissed insofar as asserted against that defendant, and the action against the remaining defendants is severed.

The plaintiffs commenced this action, inter alia, seeking to recover damages for the injuries sustained by the plaintiff Lizzy Franks when she tripped and fell into a "water depression" in a shopping center parking lot on Northern Boulevard in Little Neck. The plaintiff alleged that each of the defendants leased and operated a store in the shopping center adjacent to the parking lot, and as such, the defendants were all responsible for its maintenance.

As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property (see Welwood v Association for Children With Down Syndrome, 248 AD2d 707,...