Zarzona v. City of New York

Oct 31, 1994
Versions:208 A.D.2d 920
617 N.Y.S.2d 534

In an action to recover damages for personal injuries, the defendant John Pitera appeals from an order of the Supreme Court, Kings County (Jackson, J.), entered February 4, 1993, which denied, without prejudice, his motion for summary judgment with leave to renew it after the completion of discovery.

Ordered that the order is reversed on the law, with costs, appellant’s motion for summary judgment is granted, and the complaint and any cross-claims are dismissed insofar as they are asserted against him.

The respondents’ opposition to the appellant’s motion for summary judgment was based on the mere hope that discovery would uncover evidence that the alleged defect, an elevation in the sidewalk, was caused by actions taken by the abutting landowner, the appellant, as opposed to the normal growth of an adjacent tree (see, Zizzo v City of New York, 176 AD2d 722; Kennerly v Campbell Chain Co., 133 AD2d 669). The respondents, therefore, failed to provide a basis, pursuant to CPLR 3212 (f), for postponing a decision on the appellant’s summary judgment motion (see, Sarver v Martyn, 161 AD2d 623). Sullivan, J. P., Rosenblatt, Altman, Hart and Friedmann, JJ., concur.