Opinion
9699 Index 25032/16E
06-25-2019
Ursula SMITH, Plaintiff, v. 562 MORRIS REALTY LLC, Defendant–Respondent, 562 Morris Holdings, LLC, Defendant–Appellant.
Wylie Stecklow PLLC, New York (Wylie M. Stecklow of counsel), for appellant. Clausen Miller P.C., New York (Melinda S. Kollross of counsel), for respondent.
Wylie Stecklow PLLC, New York (Wylie M. Stecklow of counsel), for appellant.
Clausen Miller P.C., New York (Melinda S. Kollross of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Webber, Oing, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered July 2, 2018, which, to the extent appealed from as limited by the briefs, granted the motion of defendant 562 Morris Realty LLC (Realty) for reargument, and upon reargument, denied the motion of defendant 562 Morris Holdings LLC (Holdings) to dismiss the complaint and all cross claims as against it, unanimously reversed, on the law, with costs, and Holdings' motion to dismiss granted. The Clerk is directed to enter judgment accordingly.
Holdings submitted documentary evidence that it did not own, lease, or otherwise control the premises where plaintiff's accident took place, having sold it over one month earlier to Realty, thereby refuting the factual allegations in the complaint, and conclusively disposing of plaintiff's claim as against it (see Jackson v. Board of Educ. of City of N.Y., 30 A.D.3d 57, 60, 812 N.Y.S.2d 91 [1st Dept. 2006] ; Mullen v. Zoebe, Inc., 205 A.D.2d 597, 613 N.Y.S.2d 272 [2d Dept. 1994] ). Furthermore, the documents regarding the holdover proceeding and stipulation entered clearly demonstrated that defendant Realty was on notice of the illegally installed washing machine in the apartment directly above plaintiff's. In opposition, Realty failed to establish that it had insufficient time to remedy the condition, and proffered no evidence of any efforts to investigate or cure, in support of its claim that Holdings could be liable pursuant to a prior owner exception (see Bittrolff v. Ho's Dev. Corp., 77 N.Y.2d 896, 568 N.Y.S.2d 902, 571 N.E.2d 72 [1991] ; Brazell v. Wells Fargo Home Mtge., Inc., 42 A.D.3d 409, 410–411, 839 N.Y.S.2d 758 [1st Dept. 2007]; cf. Sarfowaa v. Claflin Apts., 284 A.D.2d 228, 727 N.Y.S.2d 82 [1st Dept. 2001] ).