Severin v. T Burger, LLC , 4 N.Y.S.3d 540 ( 2015 )

Severin v T Burger, LLC (2015 NY Slip Op 02749)

Severin v T Burger, LLC

2015 NY Slip Op 02749

Decided on April 1, 2015

Appellate Division, Second Department

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.

Decided on April 1, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
L. PRISCILLA HALL
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.

2014-03027
(Index No. 13274/10)

[*1]George Severin, et al., respondents,

v

T Burger, LLC, appellant, et al., defendants.

White & McSpedon, P.C., New York, N.Y. (Joseph W. Sands of counsel), for appellant.

Keegan & Keegan, Ross & Rosner, LLP, Patchogue, N.Y. (James G. Rosner of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant T Burger, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (LaSalle, J.), entered January 21, 2014, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff George Severin (hereinafter the injured plaintiff) allegedly fell while walking down a stairway to the basement of a restaurant located at 67 Lafayette Avenue in Brooklyn. At the time of the accident the restaurant was operated by the defendant T Burger, LLC (hereinafter T Burger). The Supreme Court denied that branch of T Burger's motion which was for summary judgment dismissing the complaint insofar as asserted against it. T Burger appeals.

Contrary to T Burger's assertion on appeal, it did not establish its prima facie entitlement to judgment as a matter of law, since it failed to demonstrate that the injured plaintiff was unable to identify the cause of his fall without resorting to speculation (see Martino v Patmar Props., Inc., 123 AD3d 890; Palahnuk v Tiro Rest. Corp., 116 AD3d 748; cf. Deputron v A & J Tours, Inc., 106 AD3d 944, 945). Since T Burger failed to meet its prima facie burden, the Supreme Court properly denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the plaintiffs' opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

LEVENTHAL, J.P., HALL, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court