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Elaine Blech, et al v. West Park Presbyterian Church

New York Supreme Court Appellate Division, First Department


July 10, 2012

ELAINE BLECH, ET AL., PLAINTIFFS-RESPONDENTS,
v.
WEST PARK PRESBYTERIAN CHURCH, ET AL., DEFENDANTS, MONADNOCK CONSTRUCTION, INC., ET AL., DEFENDANTS-APPELLANTS.

Blech v West Park Presbyt. Church

Decided on July 10, 2012

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.

Mazzarelli, J.P., Friedman, Catterson, Richter, Manzanet-Daniels, JJ.

Orders, Supreme Court, New York County (Joan M. Kenney, J.), entered January 28, 2011, which denied defendants Richmond Housing Resources, LLC's and Monadnock Construction, Inc.'s motions to dismiss the complaint as against them pursuant to CPLR 3211 and 3212, and CPLR 3212, respectively, unanimously affirmed, without costs. Order, same court and Justice, entered on or about September 23, 2011, which, upon reargument, denied the part of Richmond's motion that sought to dismiss pursuant to CPLR 3212, unanimously reversed, on the law, without costs, and the motion granted. Order, same court and Justice, entered September 23, 2011, which, to the extent appealable, denied Monadnock's motion to renew its motion for summary judgment, unanimously affirmed, without costs. Order, same court and Justice, entered October 12, 2011, which denied Monadnock's second motion for summary judgment dismissing the complaint and all cross claims against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendants' initial motions for summary judgment were premature, since the matter was in the early stages of discovery, and depositions had not yet been taken (see CPLR 3212[f]; Tucker v New York City Tr. Auth., 42 AD3d 316 [2007]; Gonzalez v Vincent James Mgt. Co., 306 AD2d 226 [2003]). The motion court erred in denying Richmond's motion to reargue on the grounds that, inter alia, discovery "had not yet begun." At the time of Richmond's motion to reargue, virtually all discovery had concluded, including the depositions of all of the parties. The motion court also erred when it found that the motion to reargue was untimely. The record reveals that the motion was served within 30 days from service of the underlying order with notice of entry (CPLR 2221[d][3]). Finally, while the court addressed Richmond's CPLR 3211 motion in its original decision, it failed to address the merits of the 3212 motion.

We find that Richmond made out its prima facie entitlement to summary judgment. Richmond put forth evidence that it did not own the property adjacent to the sidewalk defect, performed no construction at the property, did not contract for or erect the sidewalk bridge on the property, or create the condition complained of. In response, plaintiffs failed to either refute Richmond's contentions or identify any contractual obligation of Richmond that would give rise to tort liability; namely, a duty owing to plaintiffs. Thus, the motion court should have granted reargument and dismissed the claims against Richmond on summary judgment.

Monadnock's motion for leave to renew was made in violation of a prior order of the court. However, in its second motion for summary judgment, Monadnock established prima facie, through the parties' deposition testimony and certain documentary evidence, that it provided pre-construction services, such as planning and estimating, in connection with the anticipated demolition and renovation of the subject premises. However, ultimately Monadnock did not perform any physical work there or contract with others to do so. Indeed, the record again reveals that no construction work of any type was performed at the premises and the proposed project was abandoned due to the downturn in the economy. Additionally, the premises was being considered for landmark status. Plaintiffs failed to raise a triable issue of fact whether Monadnock's involvement at the premises created a duty to the injured plaintiffs that was breached or whether Monadnock caused or contributed to the alleged dangerous condition of the premises (see Amarosa v City of New York, 51 AD3d 596 [2008]; Bermudez v City of New York, 21 AD3d 258 [2005]; Kenyon v City of New York, 194 AD2d 398 [1993]). Finally, even were we to accept that Monadnock owed plaintiffs a duty, plaintiffs' claim that Monadnock's involvement establishes that it had constructive notice of the dangerous condition and raises an inference as to its creation of the condition is speculative.

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

ENTERED: JULY 10, 2012

DEPUTY CLERK

20120710

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