ZGURIS v. MART CORP

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

Michael ZGURIS, et al., Appellants, v. K-MART CORP., Respondent, et al., Defendants.

Decided: July 23, 2001

FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN, and STEPHEN G. CRANE, JJ. Cartier, Hogan, Sullivan, Bernstein & Auerbach, Patchogue, N.Y. (William A. Wittman of counsel), for appellants. Simmons, Jannace & Stagg, LLP, East Meadow, N.Y. (David B. DeSiver of counsel), for respondent. Adler & Larkin (Mauro Goldberg & Lilling, LLP, Great Neck, N.Y. [Caryn L. Lilling, Christopher Simone, and Katherine Herr Solomon] of counsel), for defendant Laro Maintenance Corporation.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated February 29, 2000, as granted the motion of the defendant Kmart Corporation s/h/a K-Mart Corp. for summary judgment dismissing the complaint insofar as asserted against it.

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

During an ongoing snowstorm on December 31, 1996, the plaintiff Michael Zguris (hereinafter the plaintiff) slipped and fell in a puddle of water located within 25 feet inside the entrance to a store owned by the defendant Kmart Corporation s/h/a K-Mart Corp. (hereinafter K-Mart).   The plaintiffs alleged, inter alia, that K-Mart failed to properly maintain the premises.   After the completion of depositions, K-Mart moved for summary judgment, asserting that the plaintiff fell in a puddle created by melted snow that accumulated during an ongoing snowstorm, that it was not liable for the plaintiff's injuries because it had no notice of any alleged puddle, and that it had not had sufficient time to clean up the puddle.

K-Mart met its initial burden of establishing its entitlement to summary judgment as a matter of law.   In opposition, the appellants failed to raise a triable issue of fact to defeat summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Therefore, the Supreme Court properly granted K-Mart's motion for summary judgment.

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