A&M East Broadway LLC v. Hong Kong Supermarket, Inc.

A&M E. Broadway LLC v Hong Kong Supermarket, Inc. (2016 NY Slip Op 04813)

A&M E. Broadway LLC v Hong Kong Supermarket, Inc.

2016 NY Slip Op 04813

Decided on June 16, 2016

Appellate Division, First 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 June 16, 2016
Acosta, J.P., Renwick, Saxe, Richter, Gische, JJ.

1495 117746/09

[*1]A & M East Broadway LLC, et al., Plaintiffs-Respondents,

v

Hong Kong Supermarket, Inc., Defendant-Appellant, PCK Realty Inc., Defendant.

Kinney Lisovicz Reilly & Wolff PC, New York (Adam M. Maurer of counsel), for appellant.

Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for respondents.

Order, Supreme Court, New York County (Lucy Billings, J.), entered May 27, 2015, which, to the extent appealed from, denied defendant supermarket's motion for summary judgment dismissing plaintiffs' complaint as against it, unanimously affirmed, without costs.

Although the supermarket moved for summary judgment within the extended time limit ordered by the motion court, the court correctly denied the motion on the merits, since the supermarket failed to make a prima facie showing of its entitlement to judgment as a matter of law (see Alvarez v 21st Century Renovations, Ltd., 66 AD3d 524, 525 [1st Dept 2009]). A fire incident report submitted by the supermarket indicated that the fire at issue originated at the market, that it spread throughout the rest of the building via "open voids," and that it led to the "structural instability" of the building and, according to plaintiffs, to the damage and demolishment of their adjoining building. The evidence submitted by the supermarket, including its expert's affidavit, failed to demonstrate that it maintained a working sprinkler system or any other fire-safety system to control the spread of the fire. Moreover, the market failed to make a prima facie showing that it did not create or have constructive notice of the open voids in the building (see Graham v YMCA of Greater N.Y., 137 AD3d 546, 547 [1st Dept 2016]). The evidence shows that the market made renovations to the building before the fire, and there is no evidence as to when the building was last inspected before the fire or the findings of that inspection.

We have considered the market's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 16, 2016

CLERK