        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

994
CA 13-00061
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


VINCENT MAISANO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MCDONALD’S CORPORATION, DOING BUSINESS AS
MCDONALD’S RESTAURANT, DEFENDANT-RESPONDENT,
ET AL., DEFENDANT.


ANDREWS, BERNSTEIN & MARANTO, LLP, BUFFALO (KENNETH A. SZYSZKOWSKI OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

LAW OFFICES OF BRADY & CARAFA, LIVERPOOL (JAMES C. BRADY OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered March 21, 2012 in a personal injury action. The
order, inter alia, granted that part of the motion of defendants for
summary judgment dismissing the complaint with respect to defendant
McDonald’s Corporation, doing business as McDonald’s Restaurant.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by dismissing the second amended
complaint against defendant McDonald’s Corporation, doing business as
McDonald’s Restaurant, and as modified the order is affirmed without
costs.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries he sustained when he slipped and fell on snow and ice on
the sidewalk at a McDonald’s franchise in Buffalo, New York. After
plaintiff filed a complaint, an amended complaint, and a second
amended complaint, defendants moved for summary judgment dismissing
the complaint. The order, inter alia, granted that part of the motion
with respect to defendant McDonald’s Corporation, doing business as
McDonald’s Restaurant (McDonald’s), and dismissed the complaint and
amended complaint against it.

     Contrary to plaintiff’s contention, McDonald’s met its initial
burden of establishing its entitlement to judgment as a matter of law,
and plaintiff failed to raise a triable issue of fact (see generally
Alvarez v Prospect Hosp., 68 NY2d 320, 324). McDonald’s submitted
evidence demonstrating that it, as a franchisor, lacked day-to-day
control over the franchisee (see Martinez v Higher Powered Pizza,
Inc., 43 AD3d 670, 671-672), and that it was an out-of-possession
landlord who did not retain control over the premises and was not
                                 -2-                           994
                                                         CA 13-00061

contractually obligated to repair or maintain the premises (see Sexton
v Resinger, 70 AD3d 1360, 1361; Dalzell v McDonald’s Corp., 220 AD2d
638, 639, lv denied 88 NY2d 815). Thus, Supreme Court properly
granted the motion with respect to McDonald’s. We note, however, that
the court failed to dismiss plaintiff’s second amended complaint, and
we therefore modify the order accordingly.




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
