On May 10, 2018 a
Order
was filed
involving a dispute between
Yvette Mcclamb,
and
Housing Partnership Development Corporation,
Kalahari Condominium,
Rnc Industries, Llc,
The Board Of Managers Of Kalahari Condominium,
Wallack Management Co., Inc.,
West New York Restoration Of Ct, Inc.,
for Torts - Other Negligence (Premises Trip and Fall)
in the District Court of New York County.
Preview
INDEX NO. 154374/2018
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/24/2018
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYNN R. KOTLER, J.S.C. PART 8
YVETTE MCCLAMB INDEX NO. 154374/18
MOT. DATE
-ve
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION et al. MOT. SEQ. NO. 001
The following papers were read on this motion to/for
Notice of Motion/Petition/O.S.C. — Affidavits — Exhibits NYSCEF DOC No(s).
Notice of Cross-Motion/Answering Affidavits — Exhibits NYSCEF DOC No(s).
Replying Affidavits NYSCEF DOC No(s).
This is a personal injury action arising from a trip and fall on a sidewalk. Defendant West New York
Restoration of CT, Inc. now moves to dismiss the complaint and all cross-claims against it based upon
documentary evidence and for failure to state a cause of action (CPLR § 3211[a][1] and [7]). Plaintiff
and defendant RNC Industries, LLC oppose the motion. For the reasons that follow, the motion is de-
nied.
On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construc-
tion (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). The court must accept the facts as alleged in the
complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only
whether the facts as alleged fit within any cognizable legal theory (id. citing Morone v. Morone, 50 NY2d
481 [1980]; Rovello v. Orofino Realty Co., 40 NY2d 633 [1976}).
Under CPLR § 3211(a)(1), “dismissal is warranted only if the documentary evidence submitted
conclusively establishes a defense to the asserted claims as a matter of law’ (Leon v. Martinez, supra
at 88).
Movant argues, based upon the affidavit of its president, that it removed the sidewalk bridge and
scaffolding from the subject premises more than two weeks prior to the date of plaintiff's accident.
While there is no dispute that movant does not own the subject property, movant has failed to establish,
prima facie entitlement to dismissal. Certainly, plaintiff has stated a cause of action based upon a theory
that movant caused or created the defective condition upon which plaintiff tripped. Otherwise, movant
has failed to come forward with documentary evidence which conclusively establishes that it did not
cause or create the subject defective condition. For at least these reasons, the motion must be denied.
Accordingly, it is hereby
ORDERED that the motion is denied in its entirety; and it is further
ORDERED that the parties are directed to appear for a preliminary conference on February 21,
2019 at 9:30am in Part 8, 80 Centre Street, Room 278.
Any requested relief not expressly addressed herein has nonetheless been considered and is
hereby expressly denied and this constitutes the Decision and Order of the court.
Dated: __ jv] al Wy
HON. LYNN R. KOTLER, J.S.C.
1. Check one: C1 CASE DISPOSED x1 NON-FINAL DISPOSITION
2. Check as appropriate: Motion is COIGRANTED i DENIED C] GRANTED IN PART C] OTHER
3. Check if appropriate: CISETTLE ORDER (] SUBMIT ORDER ( DO NOT POST
COFIDUCIARY APPOINTMENT C] REFERENCE
Page 1 of 1
lof 1
Document Filed Date
December 24, 2018
Case Filing Date
May 10, 2018
Category
Torts - Other Negligence (Premises Trip and Fall)
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INDEX NO. 154374/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/24/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYNN R. KOTLER, J.S.C. PART 8 YVETTE MCCLAMB INDEX NO. 154374/18 MOT. DATE -ve HOUSING PARTNERSHIP DEVELOPMENT CORPORATION et al. MOT. SEQ. NO. 001 The following papers were read on this motion to/for Notice of Motion/Petition/O.S.C. — Affidavits — Exhibits NYSCEF DOC No(s). Notice of Cross-Motion/Answering Affidavits — Exhibits NYSCEF DOC No(s). Replying Affidavits NYSCEF DOC No(s). This is a personal injury action arising from a trip and fall on a sidewalk. Defendant West New York Restoration of CT, Inc. now moves to dismiss the complaint and all cross-claims against it based upon documentary evidence and for failure to state a cause of action (CPLR § 3211[a][1] and [7]). Plaintiff and defendant RNC Industries, LLC oppose the motion. For the reasons that follow, the motion is de- nied. On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construc- tion (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). The court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (id. citing Morone v. Morone, 50 NY2d 481 [1980]; Rovello v. Orofino Realty Co., 40 NY2d 633 [1976}). Under CPLR § 3211(a)(1), “dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law’ (Leon v. Martinez, supra at 88). Movant argues, based upon the affidavit of its president, that it removed the sidewalk bridge and scaffolding from the subject premises more than two weeks prior to the date of plaintiff's accident. While there is no dispute that movant does not own the subject property, movant has failed to establish, prima facie entitlement to dismissal. Certainly, plaintiff has stated a cause of action based upon a theory that movant caused or created the defective condition upon which plaintiff tripped. Otherwise, movant has failed to come forward with documentary evidence which conclusively establishes that it did not cause or create the subject defective condition. For at least these reasons, the motion must be denied. Accordingly, it is hereby ORDERED that the motion is denied in its entirety; and it is further ORDERED that the parties are directed to appear for a preliminary conference on February 21, 2019 at 9:30am in Part 8, 80 Centre Street, Room 278. Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied and this constitutes the Decision and Order of the court. Dated: __ jv] al Wy HON. LYNN R. KOTLER, J.S.C. 1. Check one: C1 CASE DISPOSED x1 NON-FINAL DISPOSITION 2. Check as appropriate: Motion is COIGRANTED i DENIED C] GRANTED IN PART C] OTHER 3. Check if appropriate: CISETTLE ORDER (] SUBMIT ORDER ( DO NOT POST COFIDUCIARY APPOINTMENT C] REFERENCE Page 1 of 1 lof 1