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(FILED: BRONX COUNTY CLERK 0372772015 01:20 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 61 RECEIVED NYSCEF 03/27/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
LAZARO SANCHEZ, REPLY AFFIRMATION
Plaintiff,
-against- Index No: 24105/13
EXTRA SPACE STORAGE INC., GABRIEL Honorable Justice
CASTANO, JERILYNN HORTON, CHI HUNG and Fernando Tapia
CHAN YING,
Defendants. Return Date: March 30, 2015
CHRISTINE A. HILCKEN, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following under penalties of perjury:
1 I am an attorney in the law offices of RICHARD T. LAU & ASSOCIATES,
attorney of record for defendant, Gabriel Castano, in this action. Gabriel Castano is entitled to
summary judgment dismissing the Complaint and all cross-claims against him on the grounds
that: (a) Gabriel Castano has come forward with the undisputed evidence on the record to show
that he cannot be found liable for the trip and fall accident which occurred on December 14,
2012; and (b) in rebuttal, plaintiff, Lazaro Sanchez, and co-defendant, Extra Space Storage Inc.,
have not come forward with evidence sufficient to establish that a triable issue of fact exists as to
the liability of Gabriel Castano for the occurrence of this accident.
2 The defendant, Gabriel Castano, established prima facie entitlement to summary
judgment by annexing his sworn affidavit, which establishes that he did not owe a duty of care to
plaintiff, Lazaro Sanchez, as he did not own, control, maintain, or occupy the property where
plaintiff's accident allegedly occurred, nor did he own, grow, or maintain the subject bamboo on
such property. Even if defendant, Gabriel Castano, owed plaintiff, Lazaro Sanchez, a duty of
care, the evidence nonetheless establishes that Gabriel Castano did not create the alleged
defective condition, nor did he have actual or constructive notice of the alleged defective
condition to remedy it. See Gabriel Castano’s Summary Judgment Motion. By reason thereof,
Gabriel Castano cannot be held liable for the subject accident.
3 More specifically, the sworn affidavit of Gabriel Castano undisputedly establishes
that: (a) he has owned the residential property known as 11 Smith Street, Valley Stream, N.Y.
11580 for the past 11 years; (b) he does not have any ownership interest in Extra Space Storage
Inc,; (c) he did not plant the subject bamboo over which plaintiff allegedly tripped, or request
that it be planted; (d) he has never repaired, maintained, cared for, trimmed or otherwise
maintained the subject bamboo, nor has he ever directed anyone else to maintain the subject
bamboo; (e) he has not allowed the subject bamboo to grow or remain on his property; (f) there
is no bamboo growing, encroaching, or remaining on his property; (g) he does not have a duty to
maintain, inspect, or warm of the subject bamboo which was not on his property; (h) his
neighbors, Chi Hung and Chi Chan Ying s/h/a Chan Ying, have bamboo growing on their
property; and (i) he has never received any complaints or Notices of Violation from any entity
regarding the subject bamboo since it is not on his property. See Def. Exh. G.
4. In opposing summary judgment, the plaintiff, Lazaro Sanchez, and the co-
defendant, Extra Space Storage Inc., failed to submit any evidence to establish the negligence of
the defendant, Gabriel Castano. Instead, plaintiff and co-defendant rely solely upon the
affirmations from their attorneys, which as a matter of law are insufficient to raise a triable issue
of fact. See Plaintiff's Opposition [Pl. Opp]; see Co-defendant’s Opposition [Co-defendant
Opp.]; see also Negron v. Helmsley Spear, Inc., 280 A.D.2d 305, 721 N.Y.S.2d 12 (1* Dept.
2001) (holding that “the affirmation of plaintiff's attorney, who had no personal knowledge of
the facts, was insufficient to raise a factual issue requiring denial of defendant landlords’
summary judgment motion”); see_also Joseph v. Pitkin Carpet, Inc., 44 A.D.3d 462, 843
N.Y.S.2d 586 (1° Dept. 2007). In any event, the arguments set forth in opposition to the
defendant’s motion for summary judgment by plaintiff's counsel and co-defendant’s counsel
failed to raise any triable issues of fact and as such, are insufficient to defeat summary judgment.
See Pl. Opp; see also Co-defendant Opp.
5 First, in opposition, both plaintiff's counsel and co-defendant’s counsel make the
speculative argument that the instant motion is premature because additional discovery may
reveal facts which impose liability upon the defendant, Gabriel Castano. See Pl. Opp.; see also
Co-defendant Opp. While they argue that the motion made by Gabriel Castano is premature,
they both fail to present any evidentiary basis for their suggestions that discovery may lead to
relevant evidence. See Pl. Opp; see also Co-defendant Opp. The First Department has held that
for the court to delay action on a motion, the party opposing the motion must demonstrate “that
other facts essential to justify opposition to the motion might exist but could not be stated
without additional discovery.” See Aburto v. City of New York, 94 A.D.3d 640, 942 N.Y.S.2d
514 (1* Dept. 2012); Trainer v. City of New York, 41 A.D.3d 202, 836 N.Y.S.2d 512 (1* Dept.
2007). The Court has also held that “the mere hope that evidence sufficient to defeat a motion
for summary judgment may be uncovered during the discovery process is insufficient to deny
such a motion.” See Flores v. City of New York, 66 A.D.3d 599, 888 N.Y.S.2d 27 (i Dept.
2009). Moreover, for CPLR Rule 3212(f) relief to be granted, the party opposing a summary
judgment motion must show that facts necessary to oppose the motion are uniquely within the
possession of the other party. See Nash v. Baumblit Construction Corp., 72 A.D.3d 1037, 902
N.Y.S.2d 99 (2d Dept. 2010).
6 In Aaron v. Fish-Bones Towing, Inc., 90 A.D.3d 452, 933 N.Y.S.2d 862 (1* Dept.
2011), the Appellate Division, First Department, affirmed the lower court’s decision to grant
plaintiffs’ motion for summary judgment on the issue of liability and held that summary
judgment was not premature. The Court further held that the defendant’s “claimed need for
discovery as to the injured plaintiff's alleged negligence [was] unsupported by facts suggesting
that relevant evidence might be revealed; thus, it [was] ‘insufficient to forestall summary
judgment’.” Id. Similarly, in Progressive Northeastern Ins. Co. v. Penn-Star Ins. Co., 89 A.D.3d
547, 934 N.Y.S.2d 93 (1% Dept. 2011), the Appellate Division, First Department, held that
summary judgment was not premature where “defendant [ ] failed to present any ‘evidentiary
basis [for its] suggest[ion] that discovery may lead to relevant evidence’.” Id. Here, too, as in
the above cited cases, both plaintiff's counsel and co-defendant’s counsel failed to offer any
evidentiary basis for their suggestions that discovery may lead to relevant evidence. See Pl.
Opp; see also Co-defendant Opp.; Aaron supra; Progressive Northeastern Ins. Co. supra. Nor
have they demonstrated that defendant, Gabriel Castano, is in exclusive possession of facts
necessary for either party to oppose the motion. See Pl. Opp.; see also Co-defendant Opp.
Therefore, plaintiff, Lazaro Sanchez, and co-defendant, Extra Space Storage Inc., cannot validly
assert a need for discovery as a basis for denial of defendant’s motion.
7 Next, both plaintiffs counsel and co-defendant’s counsel argue that defendant’s
prima facie showing was insufficient as he relied solely on his sworn affidavit. See Pl. Opp.; see
also Co-defendant Opp. However, the defendant, Gabriel Castano, was entitled to rely on his
sworn affidavit in support of his motion for summary judgment on the issue of liability. See
CPLR Rule 3212. In fact, CPLR Rule 3212(b) states that “a motion for summary judgment shall
be supported by affidavit, by a copy of the pleadings and by other available proof, such as
depositions and written admissions.” See CPLR Rule 3212(b). Thus, this argument in
opposition is simply without merit.
8 In her opposition, plaintiffs counsel also incorrectly argues that the defendant,
Gabriel Castano, admitted ownership of the property where plaintiff's alleged trip and fall
accident occurred. See Pl. Opp. She states that the defendant attempted to mislead the court by
in one instance arguing that there was insufficient proof as to ownership of the property where
plaintiff allegedly tripped and fell, while on the other hand, admitting ownership of such
property. See Pl. Opp. But, plaintiff's counsel clearly misrepresents the arguments made by the
defendant in his motion for summary judgment. In fact, in his sworn affidavit, the defendant,
Gabriel Castano, admits only that he owns the residential property known as 11 Smith Street,
Valley Stream, N.Y. 11580. See Def. Exh. G. This, however, is not the address where plaintiff's
alleged accident occurred. See Def. Exh. E. Rather, plaintiff states in his Bill of Particulars that
the accident occurred “on the outside of the Extra Space Storage building with an address of 270
West Merrick Road, Valley Stream, New York, 11580.” See Def. Exh. E. As to that property,
Gabriel Castano specifically admits in his sworn affidavit that he has no ownership interest in
Extra Space Storage Inc. See Def. Exh. G. Thus, contrary to plaintiff's counsel’s assertion, the
defendant, Gabriel Castano, does not admit that he owned the property where plaintiff's alleged
accident occurred, but rather he was referring to his residential property. See Def. Exh. G; Def.
Exh. E; see also Gabriel Castano’s Summary Judgment Motion, pp. 8-9.
9 Finally, plaintiff's counsel claims in opposition that there are questions of fact “as
to whether defendant Gabriel Castano and the other named defendants owned, controlled,
maintained, etc. their properties with respect to causing bamboo to grow in a dangerous and
hazardous manner, and allowing such bamboo to grow and encroach on such premises.” See Pl.
Opp. However, plaintiff does not set forth any evidence at all to rebut Gabriel Castano’s prima
facie showing that he did not own, control, maintain, or occupy the property upon which
plaintiff, Lazaro Sanchez, allegedly tripped and fell, nor did he own, grow, or maintain the
subject bamboo on such property, which shows that Gabriel Castano did not owe a duty of care
to Lazaro Sanchez. See Gabriel Castano’s Summary Judgment Motion, pp. 8-9; see also Def.
Exh. G. Therefore, plaintiff's argument is without merit.
10. It should also be noted that the assertion by defendant, Gabriel Castano, regarding
the lack of bamboo on his property and the presence of bamboo on his co-defendants’ property is
supported by the sworn affidavit of his co-defendant, Chi Hung. Specifically, Gabriel Castano,
admits that there is no bamboo growing, encroaching or remaining on his property, and further
admits that there is bamboo growing on the co-defendants, Chi Hung and Chi Chan Ying s/h/a
Chan Ying’s property. See Def. Exh. G. This is confirmed by the sworn affidavit of Chi Hung
who admits that there is bamboo growing on his own property and admits that he maintains such
bamboo. See Exhibit “A” to Co-Defendants’ Affirmation in Partial Support to Jerilynn Horton’s
Motion to Dismiss, Affidavit of Chi Hung dated January 8, 2015 (Exhibit A).
11. In sum, the arguments set forth in opposition by plaintiff, Lazaro Sanchez, and co-
defendant, Extra Space Storage Inc., were insufficient to raise a triable issue of fact. Nowhere in
plaintiff's or co-defendant’s opposition is there any evidence of negligence on the part of the
defendant, Gabriel Castano. Neither plaintiff nor co-defendant can make such a showing by
relying on conclusory claims of negligence against Gabriel Castano. Such conclusory and
unsupported allegations are insufficient to raise a triable issue of liability. See Zuckerman v.
City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980); see_also Ehrlich _v. American
Moniger Greenhouse Manuf. Corp., 26 N.Y.2d 255, 257 N.E.2d 890 (1970); National Bank of N.
Am. v. Alizio, 103 A.D.2d 690, 477 N.Y.S.2d 356 (1" Dept. 1984). Where, as here, the
proponent of a motion makes a prima facie showing of entitlement to summary judgment, and
the opponents fail to set forth rebuttal credible evidence to the contrary, the court must direct
judgment in favor of the proponent. See McDaniel v. Bonizzi, 143 A.D.2d 980, 533 N.Y.S.2d
589 (2d Dept. 1988). In the present case, the record is devoid of any evidence to show that the
defendant, Gabriel Castano, owed a duty of care to plaintiff and thus, he cannot be held liable for
this accident. For the foregoing reasons, the defendant is entitled to summary judgment
dismissing the Complaint of plaintiff as a matter of law.
WHEREFORE, it is respectfully requested that this Court issue an Order granting the
motion of defendant, Gabriel Castano, for summary judgment, and dismissing the Complaint of
plaintiff, Lazaro Sanchez, as a matter of law; and such other and further relief as this court deems
just and proper.
Dated: Jericho, New York
March 27, 2015
CVarste 0iAe——
CHRISTINE A. HILCKEN, ESQ.
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(FILED: BRONX COUNTY CLERK 0372772015 01:20 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 61 RECEIVED NYSCEF 03/27/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX LAZARO SANCHEZ, REPLY AFFIRMATION Plaintiff, -against- Index No: 24105/13 EXTRA SPACE STORAGE INC., GABRIEL Honorable Justice CASTANO, JERILYNN HORTON, CHI HUNG and Fernando Tapia CHAN YING, Defendants. Return Date: March 30, 2015 CHRISTINE A. HILCKEN, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under penalties of perjury: 1 I am an attorney in the law offices of RICHARD T. LAU & ASSOCIATES, attorney of record for defendant, Gabriel Castano, in this action. Gabriel Castano is entitled to summary judgment dismissing the Complaint and all cross-claims against him on the grounds that: (a) Gabriel Castano has come forward with the undisputed evidence on the record to show that he cannot be found liable for the trip and fall accident which occurred on December 14, 2012; and (b) in rebuttal, plaintiff, Lazaro Sanchez, and co-defendant, Extra Space Storage Inc., have not come forward with evidence sufficient to establish that a triable issue of fact exists as to the liability of Gabriel Castano for the occurrence of this accident. 2 The defendant, Gabriel Castano, established prima facie entitlement to summary judgment by annexing his sworn affidavit, which establishes that he did not owe a duty of care to plaintiff, Lazaro Sanchez, as he did not own, control, maintain, or occupy the property where plaintiff's accident allegedly occurred, nor did he own, grow, or maintain the subject bamboo on such property. Even if defendant, Gabriel Castano, owed plaintiff, Lazaro Sanchez, a duty of care, the evidence nonetheless establishes that Gabriel Castano did not create the alleged defective condition, nor did he have actual or constructive notice of the alleged defective condition to remedy it. See Gabriel Castano’s Summary Judgment Motion. By reason thereof, Gabriel Castano cannot be held liable for the subject accident. 3 More specifically, the sworn affidavit of Gabriel Castano undisputedly establishes that: (a) he has owned the residential property known as 11 Smith Street, Valley Stream, N.Y. 11580 for the past 11 years; (b) he does not have any ownership interest in Extra Space Storage Inc,; (c) he did not plant the subject bamboo over which plaintiff allegedly tripped, or request that it be planted; (d) he has never repaired, maintained, cared for, trimmed or otherwise maintained the subject bamboo, nor has he ever directed anyone else to maintain the subject bamboo; (e) he has not allowed the subject bamboo to grow or remain on his property; (f) there is no bamboo growing, encroaching, or remaining on his property; (g) he does not have a duty to maintain, inspect, or warm of the subject bamboo which was not on his property; (h) his neighbors, Chi Hung and Chi Chan Ying s/h/a Chan Ying, have bamboo growing on their property; and (i) he has never received any complaints or Notices of Violation from any entity regarding the subject bamboo since it is not on his property. See Def. Exh. G. 4. In opposing summary judgment, the plaintiff, Lazaro Sanchez, and the co- defendant, Extra Space Storage Inc., failed to submit any evidence to establish the negligence of the defendant, Gabriel Castano. Instead, plaintiff and co-defendant rely solely upon the affirmations from their attorneys, which as a matter of law are insufficient to raise a triable issue of fact. See Plaintiff's Opposition [Pl. Opp]; see Co-defendant’s Opposition [Co-defendant Opp.]; see also Negron v. Helmsley Spear, Inc., 280 A.D.2d 305, 721 N.Y.S.2d 12 (1* Dept. 2001) (holding that “the affirmation of plaintiff's attorney, who had no personal knowledge of the facts, was insufficient to raise a factual issue requiring denial of defendant landlords’ summary judgment motion”); see_also Joseph v. Pitkin Carpet, Inc., 44 A.D.3d 462, 843 N.Y.S.2d 586 (1° Dept. 2007). In any event, the arguments set forth in opposition to the defendant’s motion for summary judgment by plaintiff's counsel and co-defendant’s counsel failed to raise any triable issues of fact and as such, are insufficient to defeat summary judgment. See Pl. Opp; see also Co-defendant Opp. 5 First, in opposition, both plaintiff's counsel and co-defendant’s counsel make the speculative argument that the instant motion is premature because additional discovery may reveal facts which impose liability upon the defendant, Gabriel Castano. See Pl. Opp.; see also Co-defendant Opp. While they argue that the motion made by Gabriel Castano is premature, they both fail to present any evidentiary basis for their suggestions that discovery may lead to relevant evidence. See Pl. Opp; see also Co-defendant Opp. The First Department has held that for the court to delay action on a motion, the party opposing the motion must demonstrate “that other facts essential to justify opposition to the motion might exist but could not be stated without additional discovery.” See Aburto v. City of New York, 94 A.D.3d 640, 942 N.Y.S.2d 514 (1* Dept. 2012); Trainer v. City of New York, 41 A.D.3d 202, 836 N.Y.S.2d 512 (1* Dept. 2007). The Court has also held that “the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion.” See Flores v. City of New York, 66 A.D.3d 599, 888 N.Y.S.2d 27 (i Dept. 2009). Moreover, for CPLR Rule 3212(f) relief to be granted, the party opposing a summary judgment motion must show that facts necessary to oppose the motion are uniquely within the possession of the other party. See Nash v. Baumblit Construction Corp., 72 A.D.3d 1037, 902 N.Y.S.2d 99 (2d Dept. 2010). 6 In Aaron v. Fish-Bones Towing, Inc., 90 A.D.3d 452, 933 N.Y.S.2d 862 (1* Dept. 2011), the Appellate Division, First Department, affirmed the lower court’s decision to grant plaintiffs’ motion for summary judgment on the issue of liability and held that summary judgment was not premature. The Court further held that the defendant’s “claimed need for discovery as to the injured plaintiff's alleged negligence [was] unsupported by facts suggesting that relevant evidence might be revealed; thus, it [was] ‘insufficient to forestall summary judgment’.” Id. Similarly, in Progressive Northeastern Ins. Co. v. Penn-Star Ins. Co., 89 A.D.3d 547, 934 N.Y.S.2d 93 (1% Dept. 2011), the Appellate Division, First Department, held that summary judgment was not premature where “defendant [ ] failed to present any ‘evidentiary basis [for its] suggest[ion] that discovery may lead to relevant evidence’.” Id. Here, too, as in the above cited cases, both plaintiff's counsel and co-defendant’s counsel failed to offer any evidentiary basis for their suggestions that discovery may lead to relevant evidence. See Pl. Opp; see also Co-defendant Opp.; Aaron supra; Progressive Northeastern Ins. Co. supra. Nor have they demonstrated that defendant, Gabriel Castano, is in exclusive possession of facts necessary for either party to oppose the motion. See Pl. Opp.; see also Co-defendant Opp. Therefore, plaintiff, Lazaro Sanchez, and co-defendant, Extra Space Storage Inc., cannot validly assert a need for discovery as a basis for denial of defendant’s motion. 7 Next, both plaintiffs counsel and co-defendant’s counsel argue that defendant’s prima facie showing was insufficient as he relied solely on his sworn affidavit. See Pl. Opp.; see also Co-defendant Opp. However, the defendant, Gabriel Castano, was entitled to rely on his sworn affidavit in support of his motion for summary judgment on the issue of liability. See CPLR Rule 3212. In fact, CPLR Rule 3212(b) states that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.” See CPLR Rule 3212(b). Thus, this argument in opposition is simply without merit. 8 In her opposition, plaintiffs counsel also incorrectly argues that the defendant, Gabriel Castano, admitted ownership of the property where plaintiff's alleged trip and fall accident occurred. See Pl. Opp. She states that the defendant attempted to mislead the court by in one instance arguing that there was insufficient proof as to ownership of the property where plaintiff allegedly tripped and fell, while on the other hand, admitting ownership of such property. See Pl. Opp. But, plaintiff's counsel clearly misrepresents the arguments made by the defendant in his motion for summary judgment. In fact, in his sworn affidavit, the defendant, Gabriel Castano, admits only that he owns the residential property known as 11 Smith Street, Valley Stream, N.Y. 11580. See Def. Exh. G. This, however, is not the address where plaintiff's alleged accident occurred. See Def. Exh. E. Rather, plaintiff states in his Bill of Particulars that the accident occurred “on the outside of the Extra Space Storage building with an address of 270 West Merrick Road, Valley Stream, New York, 11580.” See Def. Exh. E. As to that property, Gabriel Castano specifically admits in his sworn affidavit that he has no ownership interest in Extra Space Storage Inc. See Def. Exh. G. Thus, contrary to plaintiff's counsel’s assertion, the defendant, Gabriel Castano, does not admit that he owned the property where plaintiff's alleged accident occurred, but rather he was referring to his residential property. See Def. Exh. G; Def. Exh. E; see also Gabriel Castano’s Summary Judgment Motion, pp. 8-9. 9 Finally, plaintiff's counsel claims in opposition that there are questions of fact “as to whether defendant Gabriel Castano and the other named defendants owned, controlled, maintained, etc. their properties with respect to causing bamboo to grow in a dangerous and hazardous manner, and allowing such bamboo to grow and encroach on such premises.” See Pl. Opp. However, plaintiff does not set forth any evidence at all to rebut Gabriel Castano’s prima facie showing that he did not own, control, maintain, or occupy the property upon which plaintiff, Lazaro Sanchez, allegedly tripped and fell, nor did he own, grow, or maintain the subject bamboo on such property, which shows that Gabriel Castano did not owe a duty of care to Lazaro Sanchez. See Gabriel Castano’s Summary Judgment Motion, pp. 8-9; see also Def. Exh. G. Therefore, plaintiff's argument is without merit. 10. It should also be noted that the assertion by defendant, Gabriel Castano, regarding the lack of bamboo on his property and the presence of bamboo on his co-defendants’ property is supported by the sworn affidavit of his co-defendant, Chi Hung. Specifically, Gabriel Castano, admits that there is no bamboo growing, encroaching or remaining on his property, and further admits that there is bamboo growing on the co-defendants, Chi Hung and Chi Chan Ying s/h/a Chan Ying’s property. See Def. Exh. G. This is confirmed by the sworn affidavit of Chi Hung who admits that there is bamboo growing on his own property and admits that he maintains such bamboo. See Exhibit “A” to Co-Defendants’ Affirmation in Partial Support to Jerilynn Horton’s Motion to Dismiss, Affidavit of Chi Hung dated January 8, 2015 (Exhibit A). 11. In sum, the arguments set forth in opposition by plaintiff, Lazaro Sanchez, and co- defendant, Extra Space Storage Inc., were insufficient to raise a triable issue of fact. Nowhere in plaintiff's or co-defendant’s opposition is there any evidence of negligence on the part of the defendant, Gabriel Castano. Neither plaintiff nor co-defendant can make such a showing by relying on conclusory claims of negligence against Gabriel Castano. Such conclusory and unsupported allegations are insufficient to raise a triable issue of liability. See Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980); see_also Ehrlich _v. American Moniger Greenhouse Manuf. Corp., 26 N.Y.2d 255, 257 N.E.2d 890 (1970); National Bank of N. Am. v. Alizio, 103 A.D.2d 690, 477 N.Y.S.2d 356 (1" Dept. 1984). Where, as here, the proponent of a motion makes a prima facie showing of entitlement to summary judgment, and the opponents fail to set forth rebuttal credible evidence to the contrary, the court must direct judgment in favor of the proponent. See McDaniel v. Bonizzi, 143 A.D.2d 980, 533 N.Y.S.2d 589 (2d Dept. 1988). In the present case, the record is devoid of any evidence to show that the defendant, Gabriel Castano, owed a duty of care to plaintiff and thus, he cannot be held liable for this accident. For the foregoing reasons, the defendant is entitled to summary judgment dismissing the Complaint of plaintiff as a matter of law. WHEREFORE, it is respectfully requested that this Court issue an Order granting the motion of defendant, Gabriel Castano, for summary judgment, and dismissing the Complaint of plaintiff, Lazaro Sanchez, as a matter of law; and such other and further relief as this court deems just and proper. Dated: Jericho, New York March 27, 2015 CVarste 0iAe—— CHRISTINE A. HILCKEN, ESQ.