Rodriguez v. Kimco Centereach 605, Inc.
Opinion of the Court
In an action to recover damages for personal injuries, etc., the defendant Wal-Mart Stores, Inc., appeals from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated December 4, 2001, as denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the appellant is granted, upon searching the record, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Kimco Center each 605, Inc., sued herein as Kimco Development Corp., is granted, and the complaint is dismissed in its entirety; and it is further,
Ordered that one bill of costs is awarded to the appellant.
The plaintiff Joanna Rodriguez allegedly was injured when she slipped and fell while exiting the store of the defendant Wal-Mart Stores, Inc. (hereinafter Wal-Mart) on a rainy day. She commenced this action to recover damages, inter alia, for Wal-Mart’s negligence in creating an inherently dangerous condition when it painted over a cement-based epoxy surface located at the store’s exit. Wal-Mart and its landlord, the defendant Kimco Center each 605, Inc., sued herein as Kimco Development Corp. (hereinafter Kimco), moved for summary judgment dismissing the complaint. The Supreme Court denied the motion and Wal-Mart appeals.
In opposition to the defendants’ prima facie showing of entitlement to judgment as a matter of law, the plaintiffs submitted the affidavit of their engineering expert who opined, after examining the area where the injured plaintiff fell, that the measured coefficient of friction of the surface, when dry, fell below the standard required for a slip-proof surface. The expert’s opinion, however, constitutes nothing more than a
This Court may search the record and grant summary judgment to the nonappealing defendant Kimco (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111; Prisco v Long Is. Univ., 258 AD2d 451, 452). Upon searching the record, this Court finds that the branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against Kimco should have been granted based upon the same rationale which supports the dismissal as against Wal-Mart. Feuerstein, J.P., Goldstein, McGinity and Crane, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.