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Luis Garcia and Pascuala Garcia v. Melrose Estate Housing

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 30, 2010

LUIS GARCIA AND PASCUALA GARCIA,
PLAINTIFFS-RESPONDENTS,
v.
MELROSE ESTATE HOUSING, L.P.,
DEFENDANT, AND SALVATION ARMY OF AMERICA AND SALVATION ARMY OF THE UNITED STATES, DEFENDANTS-APPELLANTS.

Per curiam.

Garcia v Melrose Estate Hous., L.P.

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 30, 2010

PRESENT: McKeon, P.J., Schoenfeld, Hunter, Jr., JJ

Defendants Salvation Army of America and Salvation Army of the United States appeal from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated September 26, 2008, which denied their motion for summary judgment dismissing the complaint as against them.

Order (Raul Cruz, J.), dated September 26, 2008, reversed, with $10 costs, the motion of defendants Salvation Army of America and Salvation Army of the United States for summary judgment granted and the complaint dismissed as against them. The Clerk is directed to enter judgment accordingly.

A defendant will not be subjected to liability in a personal injury action if the defendant demonstrates that, on the date of the accident, it did not own (or otherwise control) the property where the injury took place, regardless of whether a transfer of the property from the defendant to a third-party was properly recorded (see Woroniecki v Tzitzikalakis, 255 AD2d 509 [1998]). Defendants Salvation Army of America and Salvation Army of the United States established their prima facie entitlement to judgment as a matter of law by presenting sufficient documentary evidence that they neither owned nor controlled the subject property on the date the injury occurred (see Amores v 37-06 81st St. Realty Corp., 276 AD2d 729 [2000]; see also Termine v Continental Baking Co., 299 AD2d 406 [2002]).

In opposition, plaintiffs argued that a triable issue existed because the deed transferring the property from defendants Salvation Army of America and Salvation Army of the United States to a nonparty was not properly recorded. However, the failure to record the deed by which defendants divested themselves of their interest in the property does not bar the granting of summary judgment(see Hernandez v Chen, 273 AD2d 274 [2000]). Since plaintiffs submitted no evidence suggesting that defendants Salvation Army of America and Salvation Army of the United States exercised ownership or control over the property on the date of the accident, plaintiffs failed to raise a triable issue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 30, 2010

20101230

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