Umanskaya v. 4050 Nostrand Ave. CondominiumUmanskaya v. 4050 Nostrand Ave. Condominium
Margaret G. Klein & Associates (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Christen Giannaros], of counsel), for appellant.
William Pager, Brooklyn, NY, for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Kaled Management Corp. appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated October 26, 2018. The order denied that defendant‘s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Kaled Management Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.
The plaintiff commenced this action to recover damages for personal injuries that she alleges she sustained when she tripped and fell on a defective sidewalk outside certain premises in Brooklyn. The defendant Kaled Management Corp. (hereinafter Kaled) moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. By order dated October 26, 2018, the Supreme Court denied Kaled‘s motion. Kaled appeals.
“For a defendant to be held liable in tort, it must have owed
“Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property” (Donatien v Long Is. Coll. Hosp., 153 AD3d 600, 600-601). “The existence of one or more of these elements is sufficient to give rise to a duty of care . . . . Where none is present, [generally] a party cannot be held liable for injuries caused by the [allegedly] defective condition” (Donatien v Long Is. Coll. Hosp., 153 AD3d at 601 [citation and internal quotation marks omitted]).
Here, Kaled demonstrated its prima facie entitlement to judgment as a matter of law by demonstrating that it did not owe a duty of care to the plaintiff (see Reynolds v Avon Grove Props., 129 AD3d 932, 933; Suero-Sosa v Cardona, 112 AD3d at 707). In support of its motion, Kaled submitted, inter alia, the answer of the defendants Harbor Point Condominium Board of Managers (hereinafter Harbor Point) and Abstract Management, LLC (hereinafter Abstract), containing admissions that Harbor Point was the owner of the abutting premises, and that Abstract rendered certain managerial services for the abutting premises. Among Kaled‘s other submissions was the affidavit of its chief financial officer, who asserted that Kaled did not own or manage the abutting premises on the date of the alleged accident, that Kaled had not managed the premises since August 2008 when Abstract took over management of the premises from Kaled, and that Kaled had not had any relationship with the premises in over nine years.
In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff contended that Kaled‘s motion was premature, the plaintiff failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within Kaled‘s knowledge and control (see
Accordingly, we disagree with the Supreme Court‘s determination to deny Kaled‘s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
MASTRO, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court