Philanthrope v. Papa John's Pizza

Philanthrope v Papa John's Pizza (2021 NY Slip Op 01131)

Philanthrope v Papa John's Pizza

2021 NY Slip Op 01131

Decided on February 18, 2021

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 and Entered: February 18, 2021
Before: Renwick, J.P., Kern, Singh, Shulman, JJ.

Index No. 450723/18 Appeal No. 13170 Case No. 2019-4126

[*1]Marie Philanthrope, Plaintiff-Respondent,

v

Papa John's Pizza, et al., Defendants, Papa John's USA, Inc., Defendant-Appellant.

McManus Ateshoglou Aiello & Apostolakos, PLLC, New York (Joshua Talcovitz of counsel), for appellant.

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered April 15, 2019, which denied defendant Papa John's USA, Inc.'s motion pursuant to CPLR 3211(a)(1) and (a)(7) to dismiss the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In this premises slip-and-fall case, defendant Papa John"s USA, Inc. submitted documentary evidence (i.e., a lease, deed, franchise agreement, and other documents) on its unopposed motion to dismiss that demonstrates that it was not a party to the franchise arrangement, had no role therein, and that it was not a party to the lease agreement, which was executed by the franchisee and the owner of the commercial premises. That evidence conclusively refutes the allegations that it had any role in the ownership, control, or maintenance of the leased premises where plaintiff was allegedly injured (see Gulf & W. Corp. v New York Times Co ., 81 AD2d 772, 773 [1st Dept 1981]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 18, 2021