Marrone v. South Shore Properties

• Decision Date: 30 May 2006
• Docket Number: 2005-05125.
• Citation: 2006 NY Slip Op 04255,29 A.D.3d 961,816 N.Y.S.2d 530
• Parties: PATRICIA MARRONE, Respondent, v. SOUTH SHORE PROPERTIES, Appellant-Respondent, and CVS PHARMACY, INC., Respondent-Appellant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 961

816 N.Y.S.2d 530

2006 NY Slip Op 04255

PATRICIA MARRONE, Respondent, v. SOUTH SHORE PROPERTIES, Appellant-Respondent, and CVS PHARMACY, INC., Respondent-Appellant. (And a Third-Party Action.)

2005-05125.

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

May 30, 2006.

In an action to recover damages for personal injuries, the defendant South Shore Properties appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated April 21, 2005, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it and the defendant CVS Deer Park, LLC, sued herein as CVS Pharmacy, Inc., cross-appeals from so much of the same order as denied its motion for summary judgment dismissing

the complaint insofar as asserted against it and for summary judgment on its cross claim for common-law and contractual indemnification.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of CVS Deer Park, LLC, sued herein as CVS Pharmacy, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable by the plaintiff to the defendant CVS Deer Park, LLC, sued herein as CVS Pharmacy, Inc., and one bill of costs payable by the defendant South Shore Properties to the plaintiff, and the complaint is dismissed insofar as asserted against the defendant CVS Deer Park, LLC, sued herein as CVS Pharmacy, Inc.

The Supreme Court properly denied the motion of the defendant South Shore Properties (hereinafter South Shore) for summary judgment dismissing the complaint insofar as asserted against it. Although South Shore established its prima facie entitlement to judgment as a matter of law by demonstrating, through the submission of a lease and a deed, that the owner of the premises where the subject accident occurred was a separate entity known as Park Plaza Properties, LLC (see Millman v Citibank, 216 AD2d 278 [1995]), the plaintiff raised a triable issue of fact as to South Shore's ownership or control of the premises by showing that South Shore had retained a service to clean the subject premises (see Weinstein v Willow Lake Corp., 262 AD2d 634, 635 [1999]; Anderson St. Realty Corp. v RHMB New Rochelle Leasing Corp., 243 AD2d 595 [1997]). Since South Shore failed to present any evidence, let alone establish a prima facie case, "that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to...