Parker v Oceanside Cove Home Owners Assn., Inc.

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Parker v Oceanside Cove Home Owners Assn., Inc. 2019 NY Slip Op 34654(U) July 23, 2019 Supreme Court, Nassau County Docket Number: Index No.: 601545/19 Judge: Denise L. Sher Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NASSAU COUNTY CLERK 07/24/2019 11:59 AM INDEX NO. 601545/2019 0 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/24/2019 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS PART 32 NASSAU COUNTY ANDREW PARKER, Plaintiff, - against - Index No.: 601545/19 Motion Seq. Nos.: 01, 02 Motion Dates: 05/30/19 05/30/19 OCEANSIDE COVE HOME OWNERS ASSOCIATION, INC., OCEANSIDE COVE II APARTMENT CORP., OCEANSIDE COVE III RESIDENTS, CORP., OCEANSIDE COVE IV TENANTS CORP. and ALEXANDER WOLF & COMPANY, INC., Defendants. The following papers have been read on these motions: Notice of Motion (Seq. No. 01), Affirmation and Exhibits Notice of Cross-Motion {Seq. No. 02), Affirmation and Exhibits Papers Numbered 1 2 Upon the foregoing papers, it is ordered that the motions are decided as follows: Defendant Oceanside Cove IV Tenants Corp. moves (Seq. No. 01), pursuant to CPLR §§ 321 l(a)(?), 3,?l l(c) and 3212, for an order dismissing plaintiffs Verified Complaint as against it, as well as any and all cross-claims as against it. No opposition was submitted to the motion. Defendant Oceanside Cove II Apartment Corp. cross-moves (Seq. No. 02), pursuant to CPLR §§ 3211(~)(7), 321 l(c) and 3212, for an order dismissing plaintiffs Verified Complaint as [* 1] 1 of 5 FILED: NASSAU COUNTY CLERK 07/24/2019 11:59 AM NYSCEF DOC. NO. 53 INDEX NO. 601545/2019 RECEIVED NYSCEF: 07/24/2019 p against it, as well as any and all cross-claims as against it. No opposition was submitted to the cross-motion. In support of defendant Oceanside Cove IV Tenants Corp.'s motion (Seq. No. 01), its counsel submits, in pertinent part, that, "[t]his lawsuit arises out of a claimed incident that allegedly occurred on March 1, 2018 on a sidewalk curb area in front of a parking space designated as 2811 located at 100 Daly Blvd., Oceanside New York 11572 (hereinafter referred to as the 'accidept location'). As set forth below, Cove IV does not own, operate, manage, maintain or control the subject premises nor did it have any responsibilities over the subject premises and did not do so at the time of the alleged incident. Accordingly, Cove IV owed no duty of care to plaintiff and cannot be liable for plaintiffs claimed incident. Cove IV is therefore an improper party to this lawsuit and dismissal of plaintiffs Complaint and all cross-claims against it should be granted." See Defendant Oceanside Cove IV Tenants Corp. 's Affirmation in Support Exhibit A. In further support of the motion (Seq. No. 01), defendant Oceanside Cove IV Tenants Corp. submits the Affidavit of Michael Mulhern ("Mulhern"), the General Manager of Oceanside i1 Cove Home Owners Association, Inc. See Defendant Oceanside Cove IV Tenants Corp.'s Affirmation in Support Exhibit F. Counsel for defendant Oceanside Cove IV Tenants Corp. asserts that Mulhern confirms, in pertinent part, that, "Cove IV does not own or lease the lot where the accident location is situated and did not have responsibilities over the operation, , maintenance, management or control of that area." See id Defendant Oceanside Cove IV Tenants Corp. also submits a 2019 Statement of Taxes from the Town on Hempstead, County of Nassau for the subject premises reflecting that -2- [* 2] 2 of 5 INDEX NO. 601545/2019 FILED: NASSAU COUNTY CLERK 07/24/2019 11:59 AM NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/24/2019 defendant Oceanside Cove IV Tenants Corp. is not the owner of the subject premises. See Defendant Oceanside Cove IV Tenants Corp.'s Affirmation in Support Exhibit G. "In reviewing a motion to dismiss pursuant to CPLR 3211 (a)(7), "'the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory."' Mills v. Gardner, Tompkins, Terrace, Inc., 106 A.D.3d 885, 965 N.Y.S.2d 580 (2d Dept. 2013) quoting Matter of Walton v. New York State Dept. of Correctional Servs., 13 N.Y.3d 475, 893 N.Y.S.2d 453 (2009) quoting Nonnon v. City ofNew York, 9 N.Y.3d 825, 842 N.Y.S.2d 756 (2007); ABN AMRO Bank, N. V v. MBIA Inc., 17 N.Y.3d 208, 928 N.Y.S.2d 647 (2011); Leon v. Martinez, 84 N.Y.2d 83,614 N.Y.S.2d 972 (1994); Fay Estates v. Toys "R" Us, Inc., 22 A.D.3d 712, 803 N.Y.S.2d 135 (2d Dept. 2005); Collins v. Telcoa, International Corp., 283 A.D.2d 128, 726 N.Y.S.2d 679 (2d Dept. 2001). The task of the Court on such a motion is to determine whether, accepting the factual averment of the complaint as true, plaintiff can succeed on any reasonable view of facts stated. See Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 63 f N.Y.S.2d 565 (1995). In analyzing them, the Court must determine whether the facts as alleged fit within any cognizable legal theory (see Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 729 N.Y.S.2d 425 (2001)), not whether plaintiff can ultimately establish the truth of the apegations. See 219 Broadway Corp. v. Alexander's Inc., 46 N.Y.2d 506,414 N.Y.S.2d 889 (1979). The test to be applied is whether the complaint gives sufficient notice of ' the transactions ' or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from the factual averments. See Treeline 990 Stewart Partners, LLC v. RAIT Atria, LLC, 107 A.D.3d 788, 967 N.Y.S.2d 119 (2d Dept. 2013). [* 3] 3 of 5 INDEX NO. 601545/2019 FILED: NASSAU COUNTY CLERK 07/24/2019 11:59 AM NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/24/2019 However, bare legal conclusions are not presumed to be true. See Goel v. Ramachandran, 111 A.D.3d 783, 975 N.Y.S.2d 428 (2d Dept. 2013); Felix v. Thomas R. Stachecki Gen. Contr., LLC, 107 A.D.3d 664, 966 N.Y.S.2d 494 (2d Dept. 2013). "In assessing a motion to dismiss under 321 l(a)(7) ... a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint." Leon v. Martinez, supra at 88. As previously indicated, no opposition was submitted to the motion (Seq. No. 01 ). Accordingly, based upon the above, defendant Oceanside Cove IV Tenants Corp.'s motion (Seq. N~. 01), pursuant to CPLR §§ 321 l(a)(7), 321 l(c) and 3212, for an order dismissing plaintiffs Verified Complaint as against it, as well as any and all cross-claims as against it, is hereby GRANTED. With respect to defendant Oceanside Cove II Apartment Corp.'s cross-motion (Seq. No. 02), its counsel submits, in pertinent part, that, "[i]n the interest of saving the Court's limited judicial resources, your affirmant adopts the factual scenario set forth in the motion submitted by counsel for defendant OCEANSIDE COVE IV TENANTS CORP. (hereinafter referred to as )' 'COVE IV'). It i~ respectfully submitted that COVE II (sic) in the same exact factual and legal position as COVE IV as COVE II did not own, operate or manage, maintain or control the subject premises' where the plaintiff alleges his trip and fall occurred. COVE II did not have any responsibilities (or maintenance over the subject premises where the plaintiff alleged his trip and fall occurred .... COVE II did not owe any duty of care to the plaintiff herein, cannot be liable for the plaintiffs claimed accident and is therefore not a proper party to this lawsuit." In further support of the cross-motion (Seq. No. 02), defendant Oceanside Cove IV I Tenants Corp. submits the Affidavit of Mulhern, the General Manager of Oceanside Cove Home '· Owners Association, Inc. See Defendant Oceanside Cove II Apartment Corp.'s Affirmation in -4- [* 4] 4 of 5 INDEX NO. 601545/2019 FILED: NASSAU COUNTY CLERK 07/24/2019 11:59 AM NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/24/2019 Support Exhibit F. Counsel for defendant Oceanside Cove II Apartment Corp. asserts that ! Mulhern confim;is, in pertinent part, that, "Cove II does not own or lease the lot where the accident locati01{ is situated and did not have responsibilities over the operation, maintenance, management or control of that area." See id Defenda~t Oceanside Cove II Apartment Corp. also submits a 2019 Statement of Taxes from the Town on Hempstead, County of Nassau for the subject premises reflecting that defendant Oceanside Cove II Apartment Corp. is not the owner of the subject premises. See Defendant Oceanside Cove II Apartment Corp.'s Affirmation in Support Exhibit G. As previ9usly indicated, no opposition was submitted to the cross-motion (Seq. No. 02). Accordingly, based upon the above, defendant Oceanside Cove II Apartment Corp.'s ;i cross-motion (Seq. No. 02), pursuant to CPLR §§ 321 l(a)(7), 321 l(c) and 3212, for an order ' dismissing plaintiffs Verified Complaint as against it, as well as any and all cross-claims as against it, is hereby GRANTED. The remaining parties shall appear for a Compliance Conference in IAS Part 32, Nassau County Supreme Court,100 Supreme Court Drive, Mineola, New York, on November 19, 2019, at 9:30 a.m. This constitutes the Decision and Order of this Court. .,,'f .. Dated: Mineola,, New York July 23, 2019 ENTERED JUL 2 4 2019 .: , -5- } [* 5] 5 of 5 NASSAU COUNTY COUNTY CLERK'S OFFICE

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