Sada v Safon Owner LLC

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Sada v Safon Owner LLC 2021 NY Slip Op 33021(U) December 1, 2021 Supreme Court, Richmond County Docket Number: Index No. 152805/2019 Judge: Jr., Orlando Marrazzo 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: 1] RICHMOND COUNTY CLERK 11/01/2021 04:05 PM NYSCEF DOC. NO. 137 INDEX NO. 152805/2019 RECEIVED NYSCEF: 11/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND OLIVIA SADA, DECISION/ORDER ISA PART 26 HON. ORLANDO MARRAZZO, JR. Plaintiff(s), Index No.: 152805/2019 Motion No. 3, 4 -against- SAFON OWNER LLC, WEST EDEN, NEW 19 WEST LLC, THE DOWNTOWN CLUB CONDOMINIUM and 20 WEST RETAIL LLC Defendant(s) WEST EDEN LLC, Third-Party Plaintiff(s), CONCORD RESTORATION INC. and CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. Third-Part Defendant(s) The following numbered 1 to 4 were fully submitted on 28 th day of October 2021 Papers Numbered Defendant 20 West Retail LLC's Motion to Dismiss, with Supporting Papers and Exhibits, Dated, August 4, 2021 ................................................................................ 1 Affirmation in Opposition, With Supporting Papers and Exhibits, Dated, October 26, 2021 ..................................................................................................................... 2 Defendant Safon Owner LLC's & New 19 West LLC's Motion to Dismiss, with Supporting Papers and Exhibits, Dated, September 16, 2021. .................................. 3 llPage 1 of 5 [*FILED: 2] RICHMOND COUNTY CLERK 11/01/2021 04:05 PM NYSCEF DOC. NO. 137 INDEX NO. 152805/2019 RECEIVED NYSCEF: 11/01/2021 and Exhibits, Dated, October Affirmation in Opposition, With Supporting Papers ............................................... 4 26, 2021 ...................................................................... and New 19 West LLC Defendants 20 Wes t Retail LLC , Safon Owner LLC orde r dismissing the action and move pursuant to CPL R 321 1(a) (l) and (7) for an all cross-claims asserted against them , Safon Own er LLC and As is set forth below, defendants 20 West Retail LLC com plai nt and all cross-claims New 19 West LLC motions are granted. And the against these defendants are dismissed. ible in this trip and fall In the case at hand, trying to cast as wide a net as poss iff') nam es five (5) different personal injury action, plai ntiff Olivia Sada ("Pl aint at contradictorily) alleging that defendants, separately (yet identically and som ewh in, leased, controlled, operated, each defendant owned, had an ownership interest whi ch the alleged trip and fall repaired, managed, and/or inspected the premises at (the "Inc iden t") occurred. nded Verified Complaint However, it was not until plai ntif fs Second Ame the original Verified Complaint) (filed some thirteen (13) months after the filing of any specificity where it was that that plai ntiff even first attempted to articulate with mor e particularly identified the she allegedly tripped and fell. Now that plai ntiff has Verified Bill of Particulars and site of the Incident and has now even provided a 21P age 2 of 5 [*FILED: 3] RICHMOND COUNTY CLERK 11/01/2021 04:05 PM NYSCEF DOC. NO. 137 INDEX NO. 152805/2019 RECEIVED NYSCEF: 11/01/2021 photographs to definitively show the Incident Site (i.e., a particular place on the public sidewalk on Washington Street where two buildings (18-20 West Street and 21 West Street, New York, New York) meet), one thing emerges as demonstratively and indisputably certain: the defendant-movants of motion 3 and motion 4 did not own, have an ownership interest in, lease, control, or operate the Incident Site, and did not (and had no obligation to) repair, manage, or inspect such premises. The court emphasizes that conclusory allegations are insufficient to sustain a complaint. While it is often stated that, in deciding a motion to dismiss under CPLR § 3211, the Court "must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Widman v. Rosenthal, 40 A.D.3d 749 (2d Dept. 2007) (dismissing the complaint)), that principle is not without limitation. Indeed, it is beyond dispute that conclusory averments of wrongdoing are insufficient to sustain a complaint. See Elsky v. KM Ins. Brokers, 139 A.D.2d 691, 691 (2d Dep't 1988) ("While it is axiomatic that a court must assume the truth of the complaint's allegations, such an assumption must fail where there are conclusory allegations lacking in factual support ...." (citations omitted)); GDG Realty, LLC v. 149 Glen St. Corp., 155 A.D.3d 833, 835 (2d Dep't 2017) ("[E]ven accepting the plaintiffs allegations as true and affording it the benefit of every favorable inference, the 3IPage 3 of 5 [*FILED: 4] RICHMOND COUNTY CLERK 11/01/2021 04:05 PM NYSCEF DOC. NO. 137 INDEX NO. 152805/2019 RECEIVED NYSCEF: 11/01/2021 Supreme Court properly determined that the first three causes of action failed to fit into any legally cognizable theory, as they were based on speculative and conclusory factual allegations and bare legal conclusions .... "). Similarly, allegations "unequivocally contradicted by documentary evidence" are also not entitled to either a presumption of truth or a favorable inference. Leder v. Spiegel, 31 A.D.3d 266, 267 (1st Dep't 2006) (affirming dismissal of the plaintiff's claims). And further, factual assertions that are "inherently incredible" are also not entitled to be considered as true on such a motion. See Greene v. Doral Conference Ctr. Assocs., 18 A.D.3d 429, 430 (2d Dep't 2005) (affirming dismissal of the plaintiff's action); Tai v. Malekan, 305 A.D.2d 281, 281 (1st Dep't 2003) (affirming dismissal of the plaintiff's claims); Leder, 31 A.D.3d at 267 (affirming dismissal of the plaintiff's claims). As detailed below, plaintiff's claim against defendants in this action are based on nothing but speculative, conclusory, and sometimes plainly false assertions. Further, plaintiff's assertion that the defendants was somehow responsible for repairs and maintenance of the subject sidewalk are flatly contradicted by documentary evidence. In addition, the cross-claims against defendants have no basis in fact and rely upon unsupported and incredible allegations of unspecified non-existent agreements. 41Page 4 of 5 c===============:::::::::::::.r----- [*FILED: 5] RICHMOND COUNTY CLERK 11/01/2021 04:05 PM NYSCEF DOC. NO. 137 INDEX NO. 152805/2019 RECEIVED NYSCEF: 11/01/2021 Accordingly, the claims against defendants are insufficient and the court grants defendants' motion and dismisses the complaint and cross-claims against. This constitutes the decision and order of the court. Dated: November I, 2021 Staten Island, New York SI Page 5 of 5

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