Preview
INDEX NO. 154374/2018
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 11/06/2019
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. FRANCIS A. KAHN, Ill PART IAS MOTION 14
Acting Justice
X INDEX NO. 154374/2018
YVETTE MCCLAMB,
MOTION DATE 08/08/2019
Plaintiff,
MOTION SEQ. NO. 002
-V-
HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, KALAHARI CONDOMINIUM, THE
BOARD OF MANAGERS OF KALAHARI CONDOMINIUM DECISION + ORDER ON
WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES MOTION
LLC and WEST NEW YORK RESTORATION OF CT, INC
Defendants.
X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 101-116, 122-125,
128-136
were read on this motion to/for SUMMARY JUDGMENT
In this matter, Plaintiff asserts a single cause of action in negligence against Defendants
wherein she alleges she was caused to trip and fall over masonite boards improperly placed on
the sidewalk in front of 40 West 116" Street in Manhattan on August 22, 2017. Pursuant to
CPLR §3212, Defendant Housing Partnership Development Corporation (“Housing”) moves for
summary judgment alleging it did not own, operate, manage, maintain or control the abutting
sidewalk. Both Plaintiff and Defendants Kalahari Condominium, The Board of Managers of
Kalahari Condominium (“Kalahari”) and Wallack Management Co, Inc., oppose this motion on
the basis that movant failed to demonstrate that it neither caused or created the condition at issue
and that they have not had discovery of movant.
While it is ultimately the Plaintiffs burden at trial to establish a prima facie case of
negligence against the Defendants, on a motion for summary judgment, it is incumbent upon the
moving party to present evidence in admissible form, showing their entitlement to judgment in
its favor as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Castro v
Hatim, 174 AD3d 464 [1* Dept 2019]).
In support of the motion Defendant Housing argues it is not liable to Plaintiff because it
did not own, operate, manage, maintain or control the abutting premises. Defendant Housing’s
argument is at its core a claim that it did not owe a duty to the Plaintiff (see generally Basso v
Miller 49 NY2d 233 [1976]).
154374/2018 MCCLAMB, YVETTE vs. HOUSING PARTNERSHIP. Page 1 of 2
Motion No. 002
1 of 2
INDEX NO. 154374/2018
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 11/06/2019
Movant submits a cursory affidavit from an officer of the corporation and points to an un-
responded to notice to admit served by movant on Defendant Kalahari. Any reliance on this
latter evidence is misplaced as these purported admissions are perhaps binding on Kalahari, not
Plaintiff (see generally CPLR §3123). With respect to the affidavit of movant’s officer, while a
lack of ownership or other actionable interest in the area where Plaintiff alleges she fell could
establish an absence of a duty to Plaintiff, in her complaint and bill of particulars Plaintiff has
alleged the defective condition which caused her to fall was created by Defendant Housing. By
alleging same, there potential issues of fact as to the existence of a duty in the absence of
ownership or control (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Peretich v City
of New York, 263 AD2d 410 [1st Dept 1999]; Forelli v Rugino, 139 AD2d 489 [2d Dept 1988];
Caturano v City of New York, 224 AD2d 202 [1st Dept 1996]) which the non-moving parties
must be permitted to explore through a deposition of movant. As such the motion is premature
as it appears that facts may exist to defeat this motion and the non-movants should be permitted
to engage in discovery (see CPLR §3212[f]; Lemle v Lemle, 92 AD3d 494, 499 [Ist Dept 2012];
Banham v Morgan Stanley & Co., Inc., 178 AD2d 236, 238 [1st Dept 1991)).
Accordingly, Defendant Housing Partnership Development Corporation’s motion for
summary judgment is denied.
All parties directed to resume discovery and are reminded to appear for a status
conference on January 21, 2020 at 9:30 a.m., in IAS Part 14, Courtroom 1045, located in 111
Centre Street.
rt. =
11/1/2019
PUR RSE nyins 87
DATE FRANCIS A, KAI
rp ARS
CHECK ONE: CASE DISPOSED HON Di ISPOSITION
GRANTED [x] DENIED GRANTED IN PART C OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT O REFERENCE
154374/2018 MCCLAMB, YVETTE vs. HOUSING PARTNERSHIP Page 2 of 2
Motion No. 002
2 of 2
Preview
INDEX NO. 154374/2018 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 11/06/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. FRANCIS A. KAHN, Ill PART IAS MOTION 14 Acting Justice X INDEX NO. 154374/2018 YVETTE MCCLAMB, MOTION DATE 08/08/2019 Plaintiff, MOTION SEQ. NO. 002 -V- HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM DECISION + ORDER ON WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES MOTION LLC and WEST NEW YORK RESTORATION OF CT, INC Defendants. X The following e-filed documents, listed by NYSCEF document number (Motion 002) 101-116, 122-125, 128-136 were read on this motion to/for SUMMARY JUDGMENT In this matter, Plaintiff asserts a single cause of action in negligence against Defendants wherein she alleges she was caused to trip and fall over masonite boards improperly placed on the sidewalk in front of 40 West 116" Street in Manhattan on August 22, 2017. Pursuant to CPLR §3212, Defendant Housing Partnership Development Corporation (“Housing”) moves for summary judgment alleging it did not own, operate, manage, maintain or control the abutting sidewalk. Both Plaintiff and Defendants Kalahari Condominium, The Board of Managers of Kalahari Condominium (“Kalahari”) and Wallack Management Co, Inc., oppose this motion on the basis that movant failed to demonstrate that it neither caused or created the condition at issue and that they have not had discovery of movant. While it is ultimately the Plaintiffs burden at trial to establish a prima facie case of negligence against the Defendants, on a motion for summary judgment, it is incumbent upon the moving party to present evidence in admissible form, showing their entitlement to judgment in its favor as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Castro v Hatim, 174 AD3d 464 [1* Dept 2019]). In support of the motion Defendant Housing argues it is not liable to Plaintiff because it did not own, operate, manage, maintain or control the abutting premises. Defendant Housing’s argument is at its core a claim that it did not owe a duty to the Plaintiff (see generally Basso v Miller 49 NY2d 233 [1976]). 154374/2018 MCCLAMB, YVETTE vs. HOUSING PARTNERSHIP. Page 1 of 2 Motion No. 002 1 of 2 INDEX NO. 154374/2018 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 11/06/2019 Movant submits a cursory affidavit from an officer of the corporation and points to an un- responded to notice to admit served by movant on Defendant Kalahari. Any reliance on this latter evidence is misplaced as these purported admissions are perhaps binding on Kalahari, not Plaintiff (see generally CPLR §3123). With respect to the affidavit of movant’s officer, while a lack of ownership or other actionable interest in the area where Plaintiff alleges she fell could establish an absence of a duty to Plaintiff, in her complaint and bill of particulars Plaintiff has alleged the defective condition which caused her to fall was created by Defendant Housing. By alleging same, there potential issues of fact as to the existence of a duty in the absence of ownership or control (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Peretich v City of New York, 263 AD2d 410 [1st Dept 1999]; Forelli v Rugino, 139 AD2d 489 [2d Dept 1988]; Caturano v City of New York, 224 AD2d 202 [1st Dept 1996]) which the non-moving parties must be permitted to explore through a deposition of movant. As such the motion is premature as it appears that facts may exist to defeat this motion and the non-movants should be permitted to engage in discovery (see CPLR §3212[f]; Lemle v Lemle, 92 AD3d 494, 499 [Ist Dept 2012]; Banham v Morgan Stanley & Co., Inc., 178 AD2d 236, 238 [1st Dept 1991)). Accordingly, Defendant Housing Partnership Development Corporation’s motion for summary judgment is denied. All parties directed to resume discovery and are reminded to appear for a status conference on January 21, 2020 at 9:30 a.m., in IAS Part 14, Courtroom 1045, located in 111 Centre Street. rt. = 11/1/2019 PUR RSE nyins 87 DATE FRANCIS A, KAI rp ARS CHECK ONE: CASE DISPOSED HON Di ISPOSITION GRANTED [x] DENIED GRANTED IN PART C OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT O REFERENCE 154374/2018 MCCLAMB, YVETTE vs. HOUSING PARTNERSHIP Page 2 of 2 Motion No. 002 2 of 2