HABINOWSKI v. TOMMY HOY MOON CHIN (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), entered May 20, 2004, as granted the motion of the defendants Tommy Hoy Moon Chin, Kin Yee Sonia Chin, and Brenda Overfield-Fragner, d/b/a Violet Ave. Deli, for summary judgment dismissing the complaint insofar as asserted against them and that branch of the motion of the defendants Yan Tung Yeung and Ol Yu Yeung which was for summary judgment dismissing the complaint insofar as asserted against them.

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

 In response to the defendants' prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether the defendants had constructive notice of, or created, the icy condition in the parking lot where the injured plaintiff allegedly slipped and fell (see Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798;  DeVivo v. Sparago, 287 A.D.2d 535, 731 N.Y.S.2d 501;  Alexander v. City of New York, 277 A.D.2d 334, 716 N.Y.S.2d 103;  Koraca v. Heritage Hills Condominium Assoc. #11, 308 A.D.2d 565, 764 N.Y.S.2d 877).   Moreover, the defendants Tommy Hoy Moon Chin and Kin Yee Sonia Chin established that they were out-of-possession landlords, and the plaintiffs failed to raise a triable issue of fact in opposition (see Eckers v. Suede, 294 A.D.2d 533, 743 N.Y.S.2d 129;  Wright v. Feinblum, 220 A.D.2d 660, 633 N.Y.S.2d 317).   Accordingly the Supreme Court properly granted the motion of the defendants Tommy Hoy Moon Chin, Kin Yee Sonia Chin, and Brenda Overfield-Fragner, d/b/a Violet Ave. Deli, for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the motion of the defendants Yan Tung Yeung and Ol Yu Yeung which was for summary judgment dismissing the complaint insofar as asserted against them.