BIRMINGHAM v. LINDEN PLAZA HOUSING CO (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lorna J. McAllister, J.), dated June 18, 2020.  The order, insofar as appealed from, granted those branches of the defendants’ separate motions which were for summary judgment dismissing the amended complaint insofar as asserted against each of them.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendant Linden Plaza Housing Co. which was for summary judgment dismissing the amended complaint insofar as asserted against it is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511;  Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132);  and it is further,

ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.

In May 2014, Alethea Rea Haynie (hereinafter the decedent) commenced this action to recover damages for personal injuries, alleging that she was injured by a security gate located on property owned by the defendant Linden Plaza Housing Co. (hereinafter Linden Plaza) and subleased to the defendant Fine Fare Supermarket (hereafter Fine Fare).  In April 2016, while this action was pending, the decedent died from causes unrelated to the alleged incident.  After the administrator of the decedent's estate was substituted as the plaintiff, Fine Fare and Linden Plaza separately moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against each of them.  The plaintiff opposed Fine Fare's motion, but did not oppose Linden Plaza's motion.  In an order dated June 18, 2020, the Supreme Court, among other things, granted those branches of the defendants’ separate motions which were for summary judgment dismissing the amended complaint insofar as asserted against each of them.  The plaintiff appeals.

The appeal from so much of the order as granted that branch of Linden Plaza's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it must be dismissed.  As the plaintiff did not oppose that branch of Linden Plaza's motion, she is not aggrieved by the order to the extent that it granted that branch of the motion (see CPLR 5511;  Ponce–Francisco v. Plainview–Old Bethpage Cent. School Dist., 83 A.D.3d 683, 684, 920 N.Y.S.2d 406;  Mixon v. TBV., Inc., 76 A.D.3d at 156–157, 904 N.Y.S.2d 132;  Giraldo v. Morrisey, 63 A.D.3d 784, 785, 880 N.Y.S.2d 512).

The Supreme Court properly granted that branch of Fine Fare's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it.  Fine Fare met its burden of establishing its prima facie entitlement to judgment as a matter of law by demonstrating, through the affidavits of two employees, that it did not create or have actual or constructive notice of any dangerous condition with respect to the security gate on the property (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Palladino v. Monadnock Constr., Inc., 163 A.D.3d 698, 698, 81 N.Y.S.3d 129).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).  Contrary to the plaintiff's contention, the photograph which she submitted in opposition to Fine Fare's motion was unauthenticated and therefore did not constitute evidentiary proof in admissible form (see Morales v. City of New York, 278 A.D.2d 293, 293, 717 N.Y.S.2d 344;  see also Rodriguez v. Sheridan One Co., LLC, 177 A.D.3d 801, 802, 110 N.Y.S.3d 316).  Furthermore, Fine Fare's motion was not premature (see Suero–Sosa v. Cardona, 112 A.D.3d 706, 708, 977 N.Y.S.2d 61;  Cajas–Romero v. Ward, 106 A.D.3d 850, 852, 965 N.Y.S.2d 559).

BARROS, J.P., MILLER, DOWLING and WARHIT, JJ., concur.