Nussbaum v 150 W. End

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Nussbaum v 150 W. End 2009 NY Slip Op 33333(U) August 19, 2009 Supreme Court, New York County Docket Number: 101126/09 Judge: Carol R. Edmead Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 10/08/2010 1] INDEX NO. 101126/2009 0/2009 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/08/2010 SUPREME COURT OF THE STATE OF NEW YORL< - NEW vomc·coUNTY . PRESEJllT:~':, :flPJ\4CAaOl.~9 . ... \ ·, '.', ,. ' . ; ... . ' ·.. PART. 35 Ult/CB INDEX NO. MOTION DATE ¢v ¢ MOTION ll!Q. NO. MOTION CAL. NO. The following P ¢P81'8, n,µmbertd 1 to _ _ were read on tht. motion to/ford ...t ¢ ¢ '501/J S. PAPEBS NUMBIMQ Notice. of Motion/ Ordorto Show CauH - AffldaVko - Exhibit'}::'· .. c;; z 0 Cl) ~ , AnoweMg Aflldavlto -· ~lblto . /( ¢- - - - - - Replying Affld1vlt1 --------------~-- ~ !kY\'es 0 No Cross·Motlon: ~ Upon 'the f.orego_lng papera, It II ordered that thl1 motion : - . 4ur; 1111..,.;-..F111.--.---- <o<~ -\'~/:?~ rQt/;o,. ¢, t .. / .....~·- ~:~· Defendant 150 West End Avenue Owners Corp. ("150") moves pursuant to CPLR 321 l(a) (1) dismissing the complaint based on documentary evidence, and pursuant to CPLR 3212 granting summary dismissing the complaint of plaintiffs James Nussbaum and Elana Nussbaum ("plaintiffs") arguing that it is not a proper party and the complaint fails to state a cause of action as to 150. The matter arises from an accident in which Mr. Nussbaum alleges that he sustained personal injuries on April 3, 2008 when the glass shower door in the bathroom of his cooperative unit broke. ¢ After reading of the parties' submissions, analysis of the relevant case law, and oral argument, and in accordance with the "So Ordered" transcript (Ms. DeCrescenzo, Reporter), it is hereby ~ w < "' 0 z 0 I== c ~ 9RDERED that the motion of defendant 150 W.est End Avenue Owners Corp. is granted, and all claims against 150 West End Avenue Owners Corp. are severed and dismissed pursuant to CPLR 321l(a)(l). The Clerk of the Court is directed to enter judgment accordingly. Dated: -~====::::::::=;;;:::==----:==::;.;;;;;;;;~=:--:;s.c: · .JJ.S.C. . Page 1 of 4 .1, 0 FINAL DISPOSITION D NQN ..flNAL DISPOSITION Check If appropriate: D DO NOT POST · · D REFERENCE Check one: Supreme Court Records OnLine Library - page 1 of 4 [* 2] ______ ____ ,, - ·· - · - - - ·--- ···· Arial~sis' -:_·;.;. · ·. 1 , 1 :. CPLR 3211 fal fll: Defense js founded upon documentruy eyidence Pursuant to CPLR 3211 [a] [l], a party may move for judgment dismissing one or more causes of action asserted against him on the grou'nd that "a defense is founded upon documentary evidence." Thus, where the "documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter oflaw," dismissal is warranted (Leon v ' Martinez, 84 NY2d 83, 88, 614 NYS2d 972, 638 N.E.2d 511 [1994]). The test on a CPLR ~211 [a][l] motion is whether the documentary evidence submitted "conclusively establishes a defense to the asserted claims as a matter of law" (Scott v Bell Atlantic Corp., 282 AD2d 1 180, 726 NYS2d 60 [!31Dept 2001] citing Leon v Martinez, 84 NY2d 83, 88, supra; IMO Indus., Inc. v Anderson Kill & Oliclc, P. C., 267 AD2d 10, 11, .699 NYS2d 43 [1~ Dept 'I999]). ' . 1 Where documentary evidence and undisputed facts negate:or dispose of the claims in the complaint or conclusively establish a defense, dismissal may be granted pursuant to CPLR · 3211 [a][l] (Biondi v B~ekman Hill Housing Apt. Corp., 257 AD2d 76, 692 NYS2d 304[1 11 Dept 1999]; Kliebert v McKoan, 228 AD2d 232, 43 NYS2d 114 (1st Dept 1996]; Gephardt v Morgan Guaranty Trust Co. of NY., 191 AD2d 229, 594 NYS2d 248 [1st Dept 1993]; Juliano v McEntee, 150 AD2d 524, 541NYS2d232 [1st Dept 1989]; see also Leon v Martinez, 84 NY2d 83, 88, 614 NYS2d 972, 63 8 N.E.2d 511 [ 1994]; Frank v Daim/p.c17:ysler Corp., 292 AD2d 118, 741 NYS2d 9[1 11 Dept 2002]). CPLR 3212: Summarv Judgment It is well settled that where adefendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action ... has no merit" (CPLR § 32 l 2[b ]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Wtnegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v National Amusements, Inc., 2003 N.Y. Slip Op. 51390 [U] [Sup Ct New York County, 2003]). Thus, the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Wine grad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Per/binder, 307 AD2d 230, 762 NYS2d 386 [1 11 Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751NYS2d433, 434 (P1 Dept 2002]). A party can prove aprimafacie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra; Prudential Securities Inc. v Rovello, 262 AD2d 172 [1st Dept 1999]). Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for Page 2 of 4 Supreme Court Records OnLine Library - page 2 of 4 [* 3] .,;_ .. ·. , :."i.. .. h!r his or 'raii\.iie to\io so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman, supra.at 560, 562; Forrest µJewish Guild/or the Blind, 309 AD2d 546, 765 NYS2d 326 [1 ' 1 Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, supra at 562). Opponent "must assemble and lay bare [its] affirmative proof to demonstrate that genuirie issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief' (Kornfeld v NRX'Technologies, Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686 [1984)). Insufficient Dis?overv It is well settled that an argument opposing summary jlldgment on the grounds of insufficient discovery "is unavailing where the rn:mmoving parcy has failed to 'produce some evidence indicating that further discovery will yiel'd material ~d rel~vant evidence'" .(Heritage Hills Soc., Ltd. v Heritage Development Group, Inc., 56 AD3d 426, 427 [2d Dept 2008], quoting Fleischman v Peacock Water Co., Inc., 51AD3d1203, 1205 [3d Dept 2008)); Hayden v City of New York, 809 NYS2d 75, 76 [1st Dept 2006] ["In addition, plaintiff failed to show that the representatives already deposed had insufficient knowledge or were otherwise inadequate, or that further discovery was warranted by reason of a substantial likelihood that addition.al persons sought for deposition possessed information material and necessary to oppos~ the-motion"]; Prestige Decorating and Wal/covering, Inc. v US. Fire Ins. Co., 49 AD3d 406, 407 [1st Dept 2008] ["Based on the record, the discovery that has already taken place, and the lack of a showing of what further evidence might be unearthed, the asserted need for further discovery reduces itself to a 'mere hope,' which is insufficient to defeat summary judgment"]; Steinberg v Abdul, 230 AD2d 633, 633 [1st Dept 1996] ["We add that the mere hope, expressed by plaintiffs, that evidence sufficient to establish defendants' assumption of a duty to plaintiffs' decedent may be obtained during discovery does not fulfill their obligation to demonstrate the likelihood of such disclosure (CPLR 3212[f]) and, thus, is insufficient to defeat defendants' motions for summary judgment"]; Frierson v Concourse Plaza Associates, 189 AD2d 609, 610 [1st Dept 1993] ["Neither can [defendants] avoid summary judgment by claiming a need for discovery. The 'mere hope' of defendants that evidence sufficient to defeat such a motion may be uncovered during the discovery process is not enough . . . . Defendants were bound to show there was a likelihood of discovery leading to such evidence, i.e., that facts "may" exist but cannot be stated at that time (CPLR 3212[f]). This they failed to do,,]; Pro Brokerage, Inc. v Home Ins. Co., 472 NYS2d 661, 662 (1st Dept 1984] ["The plaintiffs later assertion that further discovery was necessary, not only was set forth in mere conclusory terms, but no attempt was made to explain what further discovery was necessary and to what extent such further discovery would overcome the legal insufficiency of the complaint."]). In the instant case, plaintiffs have provided insufficient evidentiary basis in its opposition papers indicating that further discovery will yield material and relevant evidence. Therefore, plaintiffs' argument lacks merit. And, plaintiffs have failed to raise an issue of fact Page 3 of 4 Supreme Court Records OnLine Library - page 3 of 4 1 . [* 4] ' , ENTER:...,,__~~~~~~~~ Dated HO" CAROL e.uaval;l\u Check one: 0 FINAL DISPOSITION Check If appropriate: ~ONMFINAL DISPOSITION o DO NOT POST Page 4 of 4 Supreme Court Records OnLine Library - page 4 of 4 IJ REFERENCE

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