Melnikov v. 249 Brighton Corp.

• Decision Date: 13 April 2010
• Parties: Rostislav MELNIKOV, respondent-appellant, v. 249 BRIGHTON CORP., et al., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 627
72 A.D.3d 760

Rostislav MELNIKOV, respondent-appellant,
v.
249 BRIGHTON CORP., et al., appellants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

April 13, 2010.

898 N.Y.S.2d 627

Weiner, Millo, Morgan & Bonanno, LLC, New York, N.Y. (James W. Bacher and John P. Bonanno of counsel), for appellants-respondents.

Siler & Ingber, LLP, Mineola, N.Y. (Michelle B. Kanter of counsel), for respondent-appellant.

STEVEN W. FISHER, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and ARIEL E. BELEN, JJ.

72 A.D.3d 760

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated August 26, 2009, as denied their motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals from so much of the same order as denied that branch of his cross motion which was for summary judgment on the issue of liability.

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

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

The defendant M & I International Foods, Inc. (hereinafter M & I), operated a

898 N.Y.S.2d 628

grocery store at 249 Brighton Beach Avenue in Brooklyn. The premises were owned by the defendant 249 Brighton Corp., which leased it to M & I. On September 14, 2006, the plaintiff slipped and fell in front of M & I's store. At his deposition, the plaintiff stated that there were a number of garbage bags approximately one to two feet from where he fell, and at least one of them was torn and leaking a substance or debris onto the sidewalk. The defendants moved for summary judgment dismissing the complaint, claiming that the plaintiff could not identify the cause of his fall, and that they neither created nor had actual or constructive notice of any alleged condition which caused the plaintiff's fall. The plaintiff cross-moved, inter alia, for summary judgment on the issue of liability. In the order appealed from, the Supreme Court denied both the defendants' motion and the plaintiff's cross motion. We affirm the order insofar as appealed from.

" 'A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to...