Opinion
Index No.: 107302/10 Seq. No.: 002
01-23-2013
NORBERTO RUIZ-MENDOZA, Plaintiff, v. THE CITY OF NEW YORK and GRAY SEAL REALTY INC., Defendant. GRAY SEAL REALTY, INC. Third-Party Plaintiff. v. PAPA FRESH, INC., Third-Party Defendant.
DECISION/ORDER
PRESENT:
Hon. Kathryn E. Freed
J.S.C.
HON. KATHRYN E. FREED: RECITATION, AS REQUIRED BY CPLR §2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
+---------------------------------------------------+ ¦PAPERS ¦NUMBERED¦ +------------------------------------------+--------¦ ¦NOTICE OF MOTION AND AFFIDAVITS ANNEXED ¦1,2 ¦ +------------------------------------------+--------¦ ¦ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED¦ ¦ +------------------------------------------+--------¦ ¦ANSWERING AFFIDAVITS ¦ ¦ +------------------------------------------+--------¦ ¦REPLYING AFFIDAVITS ¦ ¦ +------------------------------------------+--------¦ ¦EXHIBITS ¦3-6 ¦ +------------------------------------------+--------¦ ¦STIPULATIONS ¦ ¦ +------------------------------------------+--------¦ ¦OTHER ¦ ¦ +---------------------------------------------------+
UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS:
Defendant City of New York, (hereinafter, "The City"), moves for an Order pursuant to C.P.L.R.§ 3211, dismissing the complaint and any cross claims as against it and/or moves for an Order pursuant to C.P.L.R.§ 3212, granting summary judgment. No opposition has been submitted by any of the other named parties.
The instant action emanates from an incident occurring on January 28, 2010, wherein plaintiff was struck in the head by a cellar vault door as he ascended the interior vault cellar steps of 594 Amsterdam Avenue, New York, New York, in the scope of his employment at Papa Johns Pizza.
Plaintiff subsequently commenced this action on June 14, 2010 with the service of a Summons and Complaint. The City joined issued by service of its Answer on June 23, 2010. On July 11, 2012, David Schloss, Senior Title Examiner with the New York Law Department, conducted a title search for 594 Amsterdam Avenue, and discovered that on the day of plaintiff's accident, record title was in Grey Seal Realty via a deed recorded on September 27, 1968. Additionally, a copy of this lease agreement was in effect between Grey Seal Realty and Papa Johns. On April 6, 2012, plaintiff served the parties with a notice to admit that this lease was in full force and effect on the date of the accident. In response, Third-Party defendant, Papa Fresh Inc., admitted that the lease was true and accurate and that it was in full force and effect on that date.
The City argues that it cannot be held liable for plaintiff's injury(ies), since it did not own, control or maintain the premises on the date of his accident. Therefore, it owed him no duty of care. Conclusions of law:
Summary judgment is considered a "drastic" remedy (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974]; Martin v. Briggs, 235 A.D.2d 192 [1st Dept. 1997]; Chemical Bank v. West 195th Street Development Corp., 161 A.D.2d218 [1st Dept. 1990]). In order to prevail on a summary judgment motion, the movant must submit evidentiary proof in admissible form sufficient to establish a prima facie showing of entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). Once the movant demonstrates entitlement to judgment, the burden shifts to the opponent to rebut that prima facie showing (Bethlehem Steel Corp. v. Solow, 51 N.Y.2d 870, 872 [1989]). In opposing such a motion, the party must lay bare its evidentiary proof. "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 A.D.2d 728, 729 [2d Dept. 19995]; Zuckerman v. City of New York, supra).
"To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it" (Sermos v. Gruppuso, 95 A.D.3d 985, [2d Dept. 2010] citing Dennehy-Murphy v. Nor-Topia Serv. Ctr., Inc., 91 A.D.3d 629 [2d Dept. 2009]; see also Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838 [1986]; Callan v. Structure Tone, Inc., 52 A.D.3d 334 [1st Dept. 2008]; Lewis v. Lower E. Side Tenement Museum, 40 A.D.3d 438 [1st Dept. 2007]; Raffa v. The City of New York, 100 A.D.3d 558 [1st Dept. 2010]).
In the case at bar, the Court has examined the subject deed, appended to the City's papers as Exhibit "D," and finds that record title of the property was in Grey Seal Realty Corp., pursuant to a deed recorded September 27, 1968.
Therefore, in accordance with the foregoing, it is hereby
ORDERED that defendant City of New York's motion for summary judgment is granted and it is further
ORDERED that the complaint and any cross-claims against it are dismissed and it is further
ORDERED that the Trial Support Office is directed to reassign this case to a non-City part and remove it from the Part 5 inventory. Plaintiff shall serve a copy of this Order on all other parties and the Trial Support Office, 60 Centre Street, Room 158. Any compliance conferences currently scheduled are hereby canceled and it is further
ORDERED that this constitutes the decision and order of the Court.
____________________
Hon. Kathryn E. Freed
J.S.C.