|Joe v Upper Room Ministries, Inc.|
|2011 NY Slip Op 07610 [88 AD3d 963]|
|October 25, 2011|
|Appellate Division, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|Geoffrey Joe, Appellant,|
Upper Room Ministries, Inc., Respondent, et al., Defendants.
Galvano & Xanthakis, P.C., New York, N.Y. (Constantine A. Pantazis of counsel), for
Galvano & Xanthakis, P.C., New York, N.Y. (Constantine A. Pantazis of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated April 26, 2010, as granted that branch of the motion of the defendant Upper Room Ministries, Inc., 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, with costs, and that branch of the motion of the defendant Upper Room Ministries, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is denied.
The plaintiff allegedly sustained injuries when he slipped and fell on ice in a parking lot owned by the defendant Upper Room Ministries, Inc. (hereinafter Upper Room).
The Supreme Court should have denied that branch of Upper Room's motion which was for summary judgment dismissing the complaint insofar as asserted against it. In support of its motion, Upper Room submitted conflicting deposition testimony regarding the general condition of the parking lot at the time of the accident, and failed to submit evidence regarding when it or its agent last inspected the parking lot prior to the accident. Under the circumstances, Upper Room failed to establish, prima facie, that it did not have actual or constructive notice of the allegedly dangerous condition (see Baines v G&D Ventures, Inc., 64 AD3d 528, 529 ; Taylor v Rochdale Vil., Inc., 60 AD3d 930, 931-932 ). Since Upper Room failed to meet its initial burden as the movant, we need not review the sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ).
The plaintiff's remaining contention is being raised for the first time on appeal, and thus, is not properly before the Court. Rivera, J.P., Florio, Dickerson and Lott, JJ., concur.