Caldwell v. Gumley-Haft L.L.C.

Appellate Division of the Supreme Court of New York

Caldwell v. Gumley-Haft L.L.C.

55 A.D.3d 408, 866 N.Y.S.2d 46

Appellate Division of the Supreme Court of the State of New York·Decided October 21, 2008·Published·Cited by 6 cases

Opinion

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered March 5, 2008, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs failed to present evidence raising a triable issue of fact as to whether defendant was affirmatively negligent or in complete and exclusive control of the building (see Pelton v 77 Park Ave. Condominium, 38 AD3d 1, 11-12 [2006]; Gardner v 1111 Corp., 286 App Div 110 [1955], affd 1 NY2d 758 [1956]). Defendant established it did not have complete and exclusive control of the sponsor’s building, it acted solely as the sponsor’s agent, and was not liable for potentially negligent acts of the sponsor.

Plaintiffs failed to plead a cause of action for fraud with sufficient particularity (CPLR 3016 [b]). Although they alleged defendant’s representations were false, there was no factual support for that assertion, or for any of the other elements of fraud (see Friedman v Anderson, 23 AD3d 163, 166-167 [2005]). Concur—Tom, J.R, Gonzalez, Williams, Moskowitz and Freedman, JJ.

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Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered March 5, 2008, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs failed to present evidence raising a triable issue of fact as to whether defendant was affirmatively negligent or in complete and exclusive control of the building (see Pelton v 77 Park Ave. Condominium, 38 AD3d 1, 11-12 [2006]; Gardner v 1111 Corp., 286 App Div 110 [1955], affd 1 NY2d 758 [1956]). Defendant established it did not have complete and exclusive control of the sponsor’s building, it acted solely as the sponsor’s agent, and was not liable for potentially negligent acts of the sponsor.

Plaintiffs failed to plead a cause of action for fraud with sufficient particularity (CPLR 3016 [b]). Although they alleged defendant’s representations were false, there was no factual support for that assertion, or for any of the other elements of fraud (see Friedman v Anderson, 23 AD3d 163, 166-167 [2005]). Concur—Tom, J.R, Gonzalez, Williams, Moskowitz and Freedman, JJ.

Caldwell v. Gumley-Haft L.L.C., 55 A.D.3d 408, 866 N.Y.S.2d 46 (N.Y. Ct. App. 2008).

Pincite

55 A.D.3d 408 (Caldwell v. Gumley-Haft L.L.C.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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