Baron v. Newman

300 A.D.2d 267, 751 N.Y.S.2d 852

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 2002
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Hall, J.), dated June 26, 2001, as granted the separate motions of the defendants Patricia E. Newman, Nancy S. Malin, and Peconic Properties, Ltd., for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

In support of their respective motions for summary judgment dismissing the complaint insofar as asserted against them, the defendants established, prima facie, their entitlement to judgment as a matter of law by submitting evidence demonstrating that they did not create the defective condition on which the plaintiff slipped and fell, a two-inch high incline on the asphalt pavement of a public roadway abutting the property owned by the defendant Peconic Properties, Ltd., and formerly owned by the defendants Nancy S. Malin and Patricia E. Newman (see Pratt v Villa Roma Country Club, 277 AD2d 298, 299). In opposition to the motions, the plaintiff failed to come forward with evidence sufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562).

There is no merit to the plaintiffs contention that the motion for summary judgment was premature because discovery was not complete. The plaintiff may not rely upon mere hope that evidence sufficient to defeat summary judgment may be uncovered during the discovery process (see Drug Guild Distrib. v 3-9 Drugs, 277 AD2d 197; Weltmann v RWP Group, 232 AD2d 550; Aminov v East 50th St. Rest. Corp., 232 AD2d 592). Santucci, J.P., Krausman, Crane and Mastro, JJ., concur.