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holding that the plaintiff's argument, supported only by her attorney's affirmation, that a deposition of a witness was necessary since it may lead to evidence was without merit since, based on the record, such discovery was unlikely to lead to relevant evidence
Summary of this case from Magistro v. N.Y.C. Hous. Auth.Opinion
2013-12-11
Yanderis SUERO–SOSA, respondent, v. Diana CARDONA, defendant, Saxon Mortgage Services, Inc., appellant.
Edwards Wildman Palmer LLP, New York, N.Y. (Robert W. DiUbaldo and Alexander G. Henlin of counsel), for appellant. Hallock & Malerba, P.C. (James M. Sheridan, Jr., Garden City, N.Y., of counsel), for respondent.
Edwards Wildman Palmer LLP, New York, N.Y. (Robert W. DiUbaldo and Alexander G. Henlin of counsel), for appellant. Hallock & Malerba, P.C. (James M. Sheridan, Jr., Garden City, N.Y., of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, the defendant Saxon Mortgage Services, Inc., appeals from an order of the Supreme Court, Kings County (F. Rivera, J.), dated October 5, 2012, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Saxon Mortgage Services, Inc., for summary judgment dismissing the complaint insofar as asserted against it is granted.
On January 26, 2009, the plaintiff allegedly slipped and fell due to an icy condition on the sidewalk in front of certain premises on Belmont Avenue in Brooklyn (hereinafter the subject premises). She commenced this action against Diana Cardona and Saxon Mortgage Services, Inc. (hereinafter Saxon Mortgage), alleging that her injuries resulted from the defendants' negligence in the ownership, operation, possession, control, supervision, direction, repair, maintenance and management of the subject premises, including the sidewalk in front of the premises.
Saxon Mortgage moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that, since it was only the servicer of the mortgage for the subject premises and Cardona was the title owner, it owed no duty to the plaintiff with respect to the maintenance of the premises. The Supreme Court denied the motion on the ground that Saxon Mortgage failed to eliminate all triable issues of material fact.
For a defendant to be held liable in tort, it must have owed the injured party a duty of care ( see Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584, 611 N.Y.S.2d 817, 634 N.E.2d 189; Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 13, 929 N.Y.S.2d 620; Forbes v. Aaron, 81 A.D.3d 876, 877, 918 N.Y.S.2d 118). “The existence and extent of a duty is a question of law” (Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d at 13, 929 N.Y.S.2d 620).
As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property ( see Sanchez v. 1710 Broadway, Inc., 79 A.D.3d 845, 846, 915 N.Y.S.2d 272; Kydd v. Daarta Realty Corp., 60 A.D.3d 997, 998, 877 N.Y.S.2d 352; Gover v. Mastic Beach Prop. Owners Assn., 57 A.D.3d 729, 869 N.Y.S.2d 593; Dugue v. 1818 Newkirk Mgt. Corp., 301 A.D.2d 561, 756 N.Y.S.2d 51). Where none of these factors is present, a party cannot be held liable for injuries caused by a dangerous or a defective condition ( see Sanchez v. 1710 Broadway, Inc., 79 A.D.3d at 846, 915 N.Y.S.2d 272; Kydd v. Daarta Realty Corp., 60 A.D.3d at 998, 877 N.Y.S.2d 352; Gover v. Mastic Beach Prop. Owners Assn., 57 A.D.3d at 729, 869 N.Y.S.2d 593; Dugue v. 1818 Newkirk Mgt. Corp., 301 A.D.2d at 561, 756 N.Y.S.2d 51).
Here, Saxon Mortgage demonstrated, prima facie, its entitlement to judgment as a matter of law through, inter alia, the affidavit of its vice president, who averred that Saxon Mortgage did not own or control the subject premises, and the mortgage documents and the deed to the subject premises, which established that Cardona owned the subject premises on January 26, 2009 ( see Forbes v. Aaron, 81 A.D.3d at 877, 918 N.Y.S.2d 118; Pollard v. Credit Suisse First Boston Mtge. Capital, LLC, 66 A.D.3d 862, 863, 887 N.Y.S.2d 626; Rinzler v. Jafco Assoc., 21 A.D.3d 360, 361, 800 N.Y.S.2d 719; see also Demant v. Town of Oyster Bay, 23 A.D.3d 333, 334, 804 N.Y.S.2d 107). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's contention that Saxon Mortgage's summary judgment motion was premature is without merit. Pursuant to CPLR 3212(f), the court may deny a motion for summary judgment if “it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated.” It is incumbent upon the opposing party to provide an evidentiary basis to suggest that discovery might lead to relevant evidence ( see Lauriello v. Gallotta, 59 A.D.3d 497, 498–499, 873 N.Y.S.2d 690; Brewster v. Five Towns Health Care Realty Corp., 59 A.D.3d 483, 484, 873 N.Y.S.2d 199; Leeds, Morelli & Brown, P.C. v. Hernandez, 55 A.D.3d 794, 795, 866 N.Y.S.2d 311; Conte v. Frelen Assocs., LLC, 51 A.D.3d 620, 621, 858 N.Y.S.2d 258) or that the facts essential to justify opposition to the motion were in the exclusive knowledge and control of the moving party ( see Cajas–Romero v. Ward, 106 A.D.3d 850, 852, 965 N.Y.S.2d 559; Anzel v. Pistorino, 105 A.D.3d 784, 786, 962 N.Y.S.2d 700; Buchinger v. Jazz Leasing Corp., 95 A.D.3d 1053, 1054, 944 N.Y.S.2d 316; Savage v. Quinn, 91 A.D.3d 748, 750, 937 N.Y.S.2d 265).
The plaintiff's argument, supported only by her attorney's affirmation, that a deposition of a witness from Saxon Mortgage was necessary since it may lead to evidence about Saxon Mortgage's right to enter or inspect the subject premises is without merit since, based on this record, such discovery is unlikely to lead to relevant evidence ( seeCPLR 3212[f]; Neryaev v. Solon, 6 A.D.3d 510, 775 N.Y.S.2d 348). The mere “hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery [is] an insufficient basis for denying the motion” (Savage v. Quinn, 91 A.D.3d at 750, 937 N.Y.S.2d 265; see Seawright v. Port Auth. of N.Y. & N.J., 90 A.D.3d 1017, 1018, 937 N.Y.S.2d 234).
Accordingly, the Supreme Court should have granted Saxon Mortgage's motion for summary judgment dismissing the complaint insofar as asserted against it.
The plaintiff's remaining contentions are not properly before this Court, since they have been improperly raised for the first time on appeal ( see Matter of Felix v. Felix, 110 A.D.3d 805, 971 N.Y.S.2d 898; Preferred Mut. Ins. Co. v. SAV Carpentry, Inc., 44 A.D.3d 921, 923, 844 N.Y.S.2d 363; New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 A.D.3d 568, 571, 774 N.Y.S.2d 72).