Opinion
2017–00459 Index No. 577/13
04-29-2020
Theresa F. DIMILIA, et al., plaintiffs-appellants, v. Margaret HOGARTY, defendant-appellant, Wendy's Old Fashioned Hamburgers of New York, Inc., respondent, et al., defendants.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. (Jonathan A. Dachs of counsel), for plaintiffs-appellants. Charles F. Harms, Jr., Garden City, N.Y. (Michael Palmeri, Claude N. Grammatico, and James Frankini of counsel), for defendant-appellant. Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Daniel S. Kotler of counsel), for respondent.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. (Jonathan A. Dachs of counsel), for plaintiffs-appellants.
Charles F. Harms, Jr., Garden City, N.Y. (Michael Palmeri, Claude N. Grammatico, and James Frankini of counsel), for defendant-appellant.
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Daniel S. Kotler of counsel), for respondent.
WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, and the defendant Margaret Hogarty separately appeals, from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered December 7, 2016. The order, insofar as appealed from by the plaintiffs, granted that branch of the motion of the defendant Wendy's Old Fashioned Hamburgers of New York, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it. The order, insofar as appealed from by the defendant Margaret Hogarty, granted those branches of the motion of the defendant Wendy's Old Fashioned Hamburgers of New York, Inc., which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the appeal by the defendant Margaret Hogarty from so much of the order as granted those branches of the motion of defendant Wendy's Old Fashioned Hamburgers of New York, Inc., which were for summary judgment dismissing the complaint insofar as asserted against it and all cross claims asserted against it, except those cross claims asserted by the defendant Margaret Hogarty, is dismissed, as the defendant Margaret Hogarty is not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156, 904 N.Y.S.2d 132 ); and it is further,
ORDERED that the order is affirmed insofar as appealed from by the plaintiffs and insofar as reviewed on the appeal by the defendant Margaret Hogarty; and it is further,
ORDERED that one bill of costs is awarded to the defendant Wendy's Old Fashioned Hamburgers of New York, Inc., payable by the plaintiffs and by the defendant Margaret Hogarty appearing separately and filing separate briefs.
The plaintiffs Theresa DiMilia and Samantha DiMilia (hereinafter together the two plaintiffs) commenced this action against, among others, the defendant Wendy's Old Fashioned Hamburgers of New York, Inc. (hereinafter Wendy's), and the defendant Margaret Hogarty to recover damages for personal injuries they each sustained when they were struck by a vehicle driven by Hogarty as they were walking out of a Wendy's restaurant in Williston Park. The plaintiff John DiMilia, the husband of Theresa DiMilia and the father of Samantha DiMilia, also sued derivatively (hereinafter collectively with Theresa and Samantha DiMilia, the three plaintiffs). According to the complaint, the two plaintiffs had just exited the Wendy's restaurant when a vehicle operated by Hogarty suddenly accelerated forward into the side of the building, striking them and pinning them against the building. The three plaintiffs alleged that Wendy's was negligent in allowing the parking lot to "become and remain in a dangerous ... defective and unsafe condition by not having proper pedestrian protection, such as ... bollards." Thereafter, Wendy's moved for summary judgment dismissing the complaint and all cross claims and counterclaims insofar as asserted against it. The Supreme Court, among other things, granted the motion in its entirety.
Although a party who possesses real property, either as an owner or as a tenant, has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition (see Dawkins v. Mastrangelo, 137 A.D.3d 739, 739, 26 N.Y.S.3d 569 ; Martinez v. Santoro, 273 A.D.2d 448, 448, 710 N.Y.S.2d 374 ), that party does not have a " ‘duty to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against’ " ( Dawkins v. Mastrangelo, 137 A.D.3d at 739, 26 N.Y.S.3d 569, quoting Fellis v. Old Oaks Country Club, 163 A.D.2d 509, 511, 558 N.Y.S.2d 183 ; see Martinez v. Santoro, 273 A.D.2d at 448, 710 N.Y.S.2d 374 ). "There will ordinarily be no duty imposed on a defendant to prevent a third party from causing harm to another unless the intervening act which caused the plaintiff's injuries was a normal or foreseeable consequence of the situation created by the defendant's negligence" ( Rivera v. Goldstein, 152 A.D.2d 556, 557, 543 N.Y.S.2d 159 ; see Guo Hua Wang v. Lang, 47 A.D.3d 766, 767, 849 N.Y.S.2d 654 ).
We agree with the Supreme Court's determination granting those branches of Wendy's motion which were for summary judgment dismissing the complaint insofar as asserted against it and the cross claim asserted against it by Hogarty. Wendy's established its prima facie entitlement to judgment as a matter of law by demonstrating, inter alia, through its expert's affidavit that it maintained the premises in a reasonably safe condition and did not have a duty to protect against the unforseeable conduct of Hogarty (see Dawkins v. Mastrangelo, 137 A.D.3d at 740, 26 N.Y.S.3d 569 ; Marcroft v. Carvel Corp., 120 A.D.2d 651, 651–652, 502 N.Y.S.2d 245 ). Wendy's demonstrated, prima facie, that the location of the parking lot relative to where the two plaintiffs were walking merely furnished the condition or occasion for the accident, rather than served as one of its causes (see Dawkins v. Mastrangelo, 137 A.D.3d at 740, 26 N.Y.S.3d 569 ; Bun Il Park v. Korean Presbyt. Church of N.Y., 267 A.D.2d 268, 269, 700 N.Y.S.2d 54 ).
In opposition, neither the three plaintiffs nor Hogarty raised a triable issue of fact as to whether Wendy's was negligent or that the subject accident was foreseeable.
MASTRO, J.P., DUFFY, LASALLE and BRATHWAITE NELSON, JJ., concur.