PENA v. GOODY SPANISH FOOD MORE (2005)

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

Felix PENA, appellant, v. GOODY'S SPANISH FOOD & MORE, et al., respondents.

Decided: October 31, 2005

THOMAS A. ADAMS, J.P., DANIEL F. LUCIANO, WILLIAM F. MASTRO, and PETER B. SKELOS, JJ.

Michael A. Cervini, Jackson Heights, N.Y. (Robin Mary Heaney of counsel), for appellant. Robert M. Levine, New York, N.Y., for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated April 28, 2004, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. The defendants met their initial burden of submitting evidence sufficient to establish their prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). In opposition, the plaintiff failed to submit evidence in admissible form to raise a triable issue of fact as to whether the defendants breached their duty to maintain their premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).

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