- February 16, 2018
W. Rachlin, Forest Hills, NY, for appellant.
M. LEVENTHAL, J.P. JEFFREY A. COHEN ROBERT J. MILLER JOSEPH
J. MALTESE, JJ.
DECISION & ORDER
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.
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.
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
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.
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
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,
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.
the Supreme Court should have granted the appellant's
motion pursuant to CPLR 3211(a)(1) to dismiss the ...