[*1]

Upon the foregoing papers, it is ORDERED that this application is disposed of as follows:

In this action, Plaintiff claims he sustained personal injuries on July 23, 2004 within the Loews Theater Number 3 at The Palisades Center in West Nyack, New York. He claims that a leak in the roof caused an acoustical ceiling tile to fall on him as he was watching a movie.

Defendant has now moved for summary judgment and dismissal of Plaintiff's complaint alleging that neither Defendant owned the property where the event took place at the time of the accident [*2]and, even if it did, it owed no duty to Plaintiff since there was a lack of notice of the leak nor a reasonable opportunity to remedy the problem. Therefore, Defendants contend, they cannot be held negligent.

In opposition, Plaintiff contends that there are issues of fact to be determined. Specifically, Plaintiff takes issue with Defendant's contention that there was a lack of notice of the leak in the roof and/or no reasonable opportunity to take action to repair it. In support of his contentions, Plaintiff has submitted relevant excerpts of his deposition transcript in which he testifies as to the existence of a "leak" in Theater Number 3 for a period of time prior to the accident as well as actual and constructive notice of an ongoing problem with leaks throughout the movie theater establishment.

It is well established that summary judgment is "a drastic remedy, the procedural equivalent of a trial," and, therefore, should not be granted where "triable issues of fact are raised that cannot be resolved on conflicting affidavits". Epstein v. Scally, 99 AD2d 713, citing Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Alvarez v. Prospect Hosp., 68 NY2d 320; Zuckerman v. City of New York, 49 NY2d 557). In the present motion, the burden rests upon Defendants to establish that they were not the owners of the property and, even if they were, they had no notice of the leak in the roof of Theater Number 3. Once defendants have made a prima facie showing of their entitlement to judgment as a matter of law, plaintiff must then demonstrate by admissible evidence the existence of a triable issue of fact.

Defendants state that Defendant Eklecco LLC was not the owner of The Palisades Center in July 2004 when the accident occurred and, therefore, it cannot be held liable for Plaintiff's injuries. In support of it's contention, Defendants have submitted the affidavit of William Baker, Assistant General Counsel to Defendant Pyramid Management Group Inc. In his affidavit, Mr. Baker states that in or about March 2004 ownership of the mall was conveyed from Eklecco LLC to Eklecco NewCo LLC. Mr. Baker's knowledge of the conveyance is "[B]ased upon... [his] ... employment and the documents and records maintained on file in our offices,.."^[FN1]

Civil Practice Law and Rules §3212(b) provides that a summary judgment motion shall be supported by an affidavit of a person having knowledge of the facts as well as other admissible evidence. A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden. JMD Holding Corp. v Congress Financial Corporation 4 NY3d 373, 2005. While Mr. Baker may have personal knowledge regarding Defendant Pyramid in his capacity as it's Assistant General Counsel, his connection with Eklecco LLC is not stated nor is it stated how the unspecified documents in his office establish that he has personal knowledge of the facts in question. Consequently, his statements regarding ownership of The Palisades Center Mall is hearsay and does not establish Defendant [*3]Eklecco LLC's lack of ownership. No evidence has been offered regarding Defendant Pyramid's (lack of) ownership interests in The Palisades Center.

A property owner is not liable in negligence unless he or she created the allegedly dangerous condition or had actual or constructive notice of its existence (Voss v. D & C Parking, 299 AD2d 346, 2nd Dept., 2002) and failed to remedy it within a reasonable time. Penn v Fleet Bank 12 AD3d 584, 2nd Dept., 2004; Christopher v NYC Trans. Auth., 300 AD2d 336. At trial, plaintiff bears the burden of establishing that defendant had actual or constructive notice of the leaky condition that caused the ceiling tile to fall and that it failed to repair the leak before it resulted in plaintiff's injury. Figueroa v. Goetz, 5 AD3d 164,1st Dep't 2004. On Defendant's summary judgment motion, however, Defendants bear only the initial burden of showing that they lacked notice of that condition. George v. NYC Transit Auth., 306 AD2d 160, 1st Dep't 2003.

In support of it's motion, Defendants present the affidavit of Kevin Ryff, the Director of Security at The Palisades Center who states that on the day of the accident there was an unusually heavy rainstorm and that the mall had "...quite a few leaks in stores and in common areas; many more than we have ever had as a result of a rainstorm."^[FN2] He further states that to the best of his recollection prior to the July 23, 2004 accident there were no complaints about leaks in Theater Number 3 where the accident occurred.

With the foregoing, the Defendant has met its initial burden of showing that it lacked notice - actual or constructive - of the leaky condition in the ceiling.

In opposition to Defendant's motion, Plaintiff's deposition transcript is submitted in which Plaintiff states that he, personally, identified leaks prior to the date of the accident in Theater Number 3 ^[FN3] and that his boss would talk with "..the mall people..." about the leaks.^[FN4] Plaintiff contends, therefore, that the foregoing establishes issues of fact of the on-going existence of leaks in Theater Number 3 constituting actual and constructive notice to Defendant.

George Knapp, the General Manager of the theaters in the Palisades Center at the time of the accident, testified at his deposition that when he learned of the leak he took measures to cordon off the area to patrons. He further testified that he had not made any complaints about a leak in that theater within the year prior to the event.^[FN5] He also testified that he notified mall security about the leak on the day of the accident but he didn't [*4]remember if it was before or after the incident.^[FN6]

In addition, and in further support of Plaintiff's assertion that the Defendant had actual and constructive notice, Plaintiff refers to the accident report of Kevin Ryff that states, in relevant part:

"Investigation revealed the injured party was an employee of Lowes. An area had been cordoned off around a small leak that had been identified prior to an unexpected heavy rain storm." ^[FN7]

May 7, 2007

ENTER:

__________________________ [*5]

Hon. Alfred J. Weiner

Justice of the Supreme Court

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