Beale v. K Mart Corp.

Beale v K Mart Corp. 2026 NY Slip Op 05926 October 14, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Barry Beale, respondent, v K Mart Corporation, appellant, et al., defendant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 14, 2026 2025-01740, (Index No. 601098/21) Colleen D. Duffy, J.P. Deborah A. Dowling Janice A. Taylor Laurence L. Love, JJ. Sobel Pevzner, LLC, Huntington, NY (Judy R. Meisel of counsel), for appellant. Law Offices of John J. Guadagno, P.C. (Cartier, Bernstein, Auerbach & Steinberg, P.C., Patchogue, NY [Robert G. Steinberg], of counsel), for respondent. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the defendant K Mart Corporation appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated December 18, 2024. The order, insofar as appealed from, denied that defendant's motion 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 the motion of the defendant K Mart Corporation for summary judgment dismissing the complaint insofar as asserted against it is granted. The plaintiff commenced this action to recover damages for personal injuries he alleged he sustained in January 2020, when he slipped and fell on a foreign substance inside of a store allegedly owned by the defendant K Mart Corporation (hereinafter K Mart) and located in Manhattan. In April 2024, K Mart moved for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff opposed the motion. In an order dated December 18, 2024, the Supreme Court, inter alia, denied K Mart's motion. K Mart appeals. On appeal, the plaintiff has waived his opposition to K Mart's motion for summary judgment dismissing the complaint insofar as asserted against it—conceding that K Mart did not own, operate or make special use of the store (see Wilson v Rye Family Realty, LLC, 218 AD3d 836, 837; Smith v 4 Empire Mgt. Group, Inc., 208 AD3d 811, 812). Since the plaintiff no longer opposes K Mart's motion for summary judgment dismissing the complaint insofar as asserted against it, we reverse the order insofar as appealed from. K Mart's contention that the defendant Transform KM, LLC, did not breach a duty to the plaintiff is not properly before this Court as that issue was not decided in the order appealed from (see Pauyo v Pauyo, 102 AD3d 847, 848; Campione v Alberti, 98 AD3d 706, 707). DUFFY, J.P., DOWLING, TAYLOR and LOVE, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court