Opinion
2014-01-16
Jose RODRIGUEZ, et al., Plaintiffs–Appellants, v. WEINSTEIN ENTERPRISES, INC., Defendant–Respondent.
Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), for appellants. McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Mari Grace Sacro of counsel), for respondent.
Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), for appellants. McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Mari Grace Sacro of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, DeGRASSE, RICHTER, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered April 18, 2012, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established its entitlement to judgment as a matter of law, in this action where plaintiff Jose Rodriguez was injured when he slipped and fell on a patch of ice while he was working on property owned by defendant and leased by his employer, an automobile dealership. Defendant demonstrated that pursuant to the subject lease agreement, plaintiff's employer was required to repair and maintain the property ( see Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440, 906 N.Y.S.2d 528 [1st Dept.2010] ). Defendant also showed that it did not create the icy condition, which plaintiff alleges was due to an inadequate drain in a parking lot. Defendant submitted the deposition testimony of its treasurer, who stated that the tenant before plaintiff's employer had converted the property from a supermarket to an auto dealership and that in the time that he has acted as defendant's treasurer, he did not recall paying a bill for a contractor to make a structural repair to the premises.
In opposition, plaintiff failed to raise a triable issue of fact. The affidavit from his expert did not raise an issue as to constructive notice, because the expert did not set forth how the drain at issue was structurally defective, and did not identify any specific statutory provision that was purportedly violated, or that such a violation was a proximate cause of the accident ( see Torres v. West St. Realty Co., 21 A.D.3d 718, 721, 800 N.Y.S.2d 683 [1st Dept.2005], lv. denied7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006] ). Moreover, the expert's affidavit fails to indicate what methods were used to arrive at the conclusions reached, and he appears to rely solely on his status as a civil engineer, which is not sufficient to show negligencein the design or construction of the grate ( id.).
Contrary to plaintiff's contention, the arguments raised in defendant's reply papers were properly made. The deposition testimony of its treasurer was attached to its motion for summary judgment and the arguments addressed plaintiff's contentions made in opposition to the motion ( see Azzopardi v. American Blower Corp., 192 A.D.2d 453, 454, 596 N.Y.S.2d 404 [1st Dept.1993] ).