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Karpovich v. City of New York

Supreme Court of New York, Second Department

June 27, 2018

Lyudmila Karpovich, respondent,
v.
City of New York, et al., defendants, Red Banana, LLC, appellant. Index No. 518511/16

          Argued - February 16, 2018

         D55831 L/htr

          Howard W. Rachlin, Forest Hills, NY, for appellant.

          JOHN M. LEVENTHAL, J.P. JEFFREY A. COHEN ROBERT J. MILLER JOSEPH J. MALTESE, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the defendant Red Banana, LLC, appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated April 7, 2017. The order denied that defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it, with leave to renew upon the completion of discovery.

         ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Red Banana, LLC, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it is granted.

         The plaintiff alleged that on December 8, 2015, she tripped and fell over a defective portion of a sidewalk located at "430 Stanley Avenue and/or known as 840 Alabama Avenue" in Brooklyn (hereinafter the premises). The plaintiff commenced this action against the defendant Red Banana, LLC (hereinafter the appellant), among others, alleging that the appellant, or one of the other two defendants, owned, operated, maintained, or controlled the premises.

         Prior to answering the complaint, the appellant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it, contending that it did not own, operate, maintain, or control the premises. In support of the motion, the appellant submitted, inter alia, an affidavit and certain deeds. The plaintiff opposed the motion, contending that she should be permitted to conduct discovery. In the order appealed from, the Supreme Court denied the motion, with leave to renew upon the completion of discovery.

         "It is fundamental that, in order to be held liable in tort, the alleged tortfeasor must have owed the injured party a duty of care" (Forbes v Aaron, 81 A.D.3d 876, 877; see Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584). Liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property (see Kydd v Daarta Realty Corp., 60 A.D.3d 997, 998; Nappi v Incorporated Vil. Of Lynbrook, 19 A.D.3d 565, 566).

         "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiffs factual allegations, thereby conclusively establishing a defense as a matter of law" (Mawere v Landau, 130 A.D.3d 986, 987 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326). To constitute '"documentary"' evidence, the evidence must be "unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 A.D.3d 996, 996-997; see Phillips v Taco Bell Corp., 152 A.D.3d 806, 807), such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable (see Phillips v Taco Bell Corp., 152 A.D.3d at 807; Prott v Lewin & Baglio, LLP, 150 A.D.3d 908). Here, the appellant submitted deeds that conclusively established that it did not own the premises on the date that the plaintiff claims she was injured (see Forbes v Aaron, 81 A.D.3d at 877; Town of Riverhead v Silverman, 54 A.D.3d 1025, 1026).

         CPLR 3211(d) provides that where it appears "that facts essential to justify opposition [to a motion pursuant to CPLR 3211] may exist but cannot then be stated, the court may deny the motion . . . or may order a continuance to permit . . . disclosure to be had and may make such other order as may be just." However, the mere hope that discovery may reveal facts essential to justify opposition "does not warrant denial of the motion" (Cracolici v Shah, 127 A.D.3d 413, 413; see Rochester Linoleum & Carpet Ctr., Inc. v Cassin, 61 A.D.3d 1201, 1202; Mandel v Busch Entertainment Corp., 215 A.D.2d 455, 455; cf. Halmar Corp. v Hudson Founds., 212 A.D.2d 505, 506). Here, the plaintiff did not make a sufficient showing that facts essential to justify opposition to the appellant's motion could be yielded during discovery.

         Accordingly, the Supreme Court should have granted the appellant's motion pursuant to CPLR 3211(a)(1) to dismiss the ...


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