Quinones v. Mariner Hous. Dev. Fund Co., Inc.

Quinones v Mariner Hous. Dev. Fund Co., Inc. (2022 NY Slip Op 01899)

Quinones v Mariner Hous. Dev. Fund Co., Inc.

2022 NY Slip Op 01899

Decided on March 18, 2022

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 18, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, AND BANNISTER, JJ.
46 CA 21-00261

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CORY J. WEBER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Paul Wojtaszek, J.), entered January 29, 2021. The order denied the motion of defendants Mariner Housing Development Fund Company, Inc., and CRM Rental Management, Inc., for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the amended complaint is dismissed against defendants-appellants.

Memorandum: In this slip and fall negligence action, defendants-appellants (defendants) appeal from an order that denied their motion for summary judgment dismissing the amended complaint against them. We agree with defendants that they established their entitlement to judgment as a matter of law on their storm in progress affirmative defense (see Battaglia v MDC Concourse Ctr., LLC, 34 NY3d 1164, 1165-1166 [2020]). In opposition, plaintiffs failed to raise a triable issue of fact (see id. at 1166; Glover v Botsford, 109 AD3d 1182, 1183-1184 [4th Dept 2013]). We therefore reverse the order and grant the motion. Defendants' remaining contention is academic in light of our determination.

Entered: March 18, 2022

Ann Dillon Flynn

Clerk of the Court