Sanders v Aqua Chlor Enters., Inc.

Sanders v Aqua Chlor Enters., Inc. 2011 NY Slip Op 09025 Decided on December 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 15, 2011
Tom, J.P., Friedman, Freedman, Richter, JJ.
6355 16640/07

[*1]Patrick Sanders, Plaintiff-Appellant,

v

Aqua Chlor Enterprises, Inc., Defendant-Respondent, IMS Hospital Services, Inc., Defendant.




Uwem Umoh, Brooklyn, for appellant.
Faust Goetz Schenker & Blee LLP, New York (Peter Kreymer
of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.),
entered March 5, 2010, which, in this personal injury action, granted defendant Aqua Chlor Enterprises, Inc.'s motion for, among other things, summary judgment dismissing the complaint and imposed sanctions against plaintiff's counsel in the amount of $150, and awarded defendant costs and attorney's fees in the amount of $500, unanimously modified, on the law, to vacate the imposition of sanctions and attorney's fees, and otherwise affirmed, with costs against plaintiff-appellant.

Defendant Aqua Chlor made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence — including its owner's and plaintiff's deposition testimony and New York City Department of Finance records — that defendant IMS, not Aqua Chlor, owned the lot adjoining the sidewalk where plaintiff alleges he tripped and fell. In opposition, plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Indeed, plaintiff failed to submit any evidence that Aqua Chlor owned the subject lot. It is unclear whether the complaint also was dismissed as against IMS. In any event, there would be no basis to dismiss as against IMS, which has not answered, because there is evidence that it owned the lot.

The motion court improperly found that plaintiff's continued prosecution of this action against Aqua Chlor was frivolous; and thus, costs, attorney's fees and sanctions were not [*2]warranted. The attorney had a reason not to sign a stipulation of discontinuance before ascertaining exactly where his client fell.

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2011

CLERK