Sharpe v Shabbat LLC

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Sharpe v Shabbat LLC 2013 NY Slip Op 30272(U) February 4, 2013 Supreme Court, New York County Docket Number: 109311/2011 Judge: Kathryn E. Freed Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 21612013 [* 1] I Es EMT : - PART Jr Justice - _ I _ lridex Number 10931 1/2011 SHARPE, RONALD INDEX NO. VS MOTION DATE SHABBAT LLC SEQUENCE NUMBER 003 v PRECLUDE a IS: v, & ( I d The foliowing papers, numbered 1 to Notice of WiotionlBrder to Show Cause Answering Affidavits MOTION SEQ. NO. 3 ! , were read on this motion tolfar - -AHidavits - Exhibits IMob). IWd. I No@). - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion ..................................................................... m N&-FINAL DISPOSITION 0 CASE DISPOSED CHECK AS APPROPRIATE: ........................... MOTION IS: I j GRANTED i I QENIED nGRANTED IN PART L OTHER I CHECK IF APPROPRIATE: ................................................ ] SETTLE ORDER r-1SUBMIT ORDER 1- i DO MOT POST 1-1 F~EUCIARY APPOINTMENT nREFERENCE I CHECK ONE: . 2. . 3. ~ [* 2] DECI S I 0 N/O RDER Iiidcx No.: 10931 1 /20 1 I Seq. No.: 003 -against- SHABBA?' LLC; SHIMON AVRAHAMI; BANK OF NEW YORK MELLON, EOKAH GOLDSTEIN, ALTC'HULER, NAJ-1INS d% GOIDEL, P.C., JOSEPH .llUSf<Wf'l'Z, M.M. SI-T LLC, MfiRCIIRY CRGDJ'I' CORP., NYC DEPARTMEN'J' OF HOUSING PRESEKVA'I'ION AND DEVELOPMENT, and NE1)TVA SC ¬TWARZ, Defendants. KECI'I'A'I'ION, AS REQUIRED BY CPIA $2219(n), OF T H E PAPERS CONSll>k~KED THE KI-YICW OF IN THIS MOTION. NIJM B ERED PAPERS NOTICE OF MOTION AND AFI~IIIAVITS ANNI'XIlD ................. ORDER TO W O W CAUSE A N D AFFIDAVIT'S ANNEXED A N S W E K IN G A I T 1 DAW TS .............................................. REPLYING AFFIDAVITS ................................................................ EX HI HITS ..................................... ............................................ STIPULATIONS. .............................................................. OTHER. ............................................................................................... ...... 1-2 ......... ............. ..................... ..................... ....... 3-4 ........ ...................... ...................... Defcriclatit N Y C L)epartmcnt 01' Housing Prcservalion And Ilevelopmcnt, ( hereinafter, "HPD"), moves or an Order transfcrring this mattcr to a DC'M Part, assigned lo niattcrs involving the City of New York and its agencics such as HPJ). HPD also niovcs for an Order pursuant to CPLRS32 1 1 dismissing tlic complaint or, in h e altcmalive, Ibr summary jirdgiiiciit pursuant to 1 [* 3] C PLRg32 12, in that plaintiff has failed to coinply with Gcncrd Municipal 1,aw 50-1, and that HPD is iiot 311entity amenable to suit, aiid also h i t I11 13 does not own, operate, or control thc prcmiscs in which the allcgcd accident occurred. N o opposition has bccn subinittccl by any ofthc other parties to this suit. Al ler a rcvicw ofthe papcrs presented, all relevant statutcs and casclaw, thc C ourl grants the motion lor summary judgmcnt. Factual and procedural backerouiid: PlaintifTseeks damages for physical injuries Iic al Icgcdly sustaincd on August I 8,2008, when he was struck by a bicyclist on the sidewalk at 52.5 Wesl 4.5 Street, in New York. He coinincriccd the instant action hy filing a Suniinons and Coinplaint with Notice on August 1, 201 1. On August 30, 20 1 I , hc served a copy o l same 011 HPD. On August 3 1, 201 1, HPD served a written demand for a compliant. Plaintiff-theii served a complaiiit on HPD via mail on January 6, 2012. Issue was tlicn joined when HPD scrvcd its Atiswcr on January 30, 201 2. 1 0 datc, I IPI) has not received Verifkd Answers from any of the other named defendants. Howcver, co-defendants Horah, Goldstein, Altschuler, Nahins & Goidel, Shabbat I L C , Mercury Credit Corp., Nediva SchwalL and ? he Bank of Ncw York, Melloii, as Trustee have appeared. It should be noted that 14Pl) s request that the case be tratisfcrred to the IICM or C ily Part, was graiitcd, via written Order on September I 1, 2012. Therefire, this issue is now moot. I I PD next argues that t h e colnplaint and any cross-claims against it nccessitate dismissal because it is not an cntity amenable to suit. 11ref ers to aiid relies 011 the New York City Charter $9 2901 et seq., section 396, which provides lhal ageiicies ol the City are not legal entities for the purpose of suit and therefore, cannot be named as parties 2 [* 4] Conclusions of law: Iheproponent of a summary judgment niolion miist demonsti-atethat thcrc arc 1x1material issucs of fact in dispulc, and that it is entitled to judgiiicint ;IS a matter of law ( Dal las-Stcphcnson v. Waisrnan, 39 h.11.3d 303, 306 [lstDept. ISXS] citing x!!icgrad v. Ncw York I.Jniv. Med. Ctr.. 64 N.Y .2d 85 1, 853 [ 1985 I ). Once the proponent lias proffered cvidcncc cstablishing a prima Lick showing, tlic burden then shifts to the opposing party to present evidence in admissiblc forin raising a triable issue of material fact ( see Zuckcnnan v. City ol N.Y., 49 N.Y.2d 557 [ 19891; People cx rcl SpitLer v. Grasso, 50 A.11.3d 535 11 Dept. 20081 ). Mere coiiclusory assei-tioiis, dcvoid of evidentiary facts, are iiisuffjcient for this pi~rpose,as is rcl iaiicc upon surmise, conjecture or speculation ( Morgan v. New York l elephone, 220 h.D.2d 728, 729 [2d Jlept. 19851 ). If there is any doubt as to the existence of a triablc issuc offact, sirminaryjudgrneiit must be deriicd ( Kotuba Extruders v. Ccoaos, 46 N.Y.2d 223 rl9781; Grosstnan v. Amalmrnated Hous. Cors., 298 A.D.2d 224 15 Dept. 20021 ). It is wcll settled that J 1P13 is an agency within ; I public corporation, thc City of New York ( .wc Rosenbaum v. City oINew York, X N.Y.3d 1 120061 ). IJnder New York law, departnicnts which are merely administrative arms of a muiiicipality do not have a legal identity separate and apart from the muiiicipality and cannot sile or be sued ( l h l l v. Citv of White Plains, 185 F. Supp.2d 293, 303 (S.J).N.Y. 2002); see also New York City Charter, Ch. 17 8 396; Tmro v. Charles, 219 F.3d 202, 205 ti. 2 (Yd Cir. 2000 ) ). In thc case at bar, sincc 1 IPD is not an entity liable to suit as it is an administrative braiich o l N e w Yorlc City. Indeed, this is cvcii morc obvious by plaintiWs hilure to sue thc C ity of Ncw Yorlc proper. Moreovcr, there is no evidence that HPD owns, operates o r controls thc premises 3 [* 5] wlicrein the al lcgcd accident occurred. 'l'hcrdbre in accordance with the h e g o i n g , it is hcrcby ORDERED that defendant NYC Departtncnt of 1 lousing Preservation and Development's iiiotioii for sun-rmaryjiidgiiiciit is granted and the complaint and any cross-claims are hereby severed and chmisscd as against said dcfcndant, and the Clerk is directed to cntcrjudgmenl in liuor ol'said dcfcndant; and it is further ORDERED that thc remainder of this action sliall continuc; and it is lurtlier ORDERED that the Trial Support Office is directed tu reassign this casc to a non-City part and remove it from the Part 5 invcntory. Plaintiff shall serve ; copy of this order on all other parties I and the Trial Support Office, 60 C'cntre Street, Room 158. Any coinpliancc conferences currently schedulcd are hereby caticelled and it is further LE ORDERED that this constitutes the dccisioii and order o l the C Fr '3 :i ENTER: Hen. Kathryn K. Precd J.S.C. 4 #J3 \ ,

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