De Rico v. Duncan

Appellate Division of the Supreme Court of New York

De Rico v. Duncan

200 A.D.2d 823, 606 N.Y.S.2d 443, 1994 N.Y. App. Div. LEXIS 56

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 6, 1994

StatusPublished

Cited by1 cases

This text of 200 A.D.2d 823 (De Rico v. Duncan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

De Rico v. Duncan, 200 A.D.2d 823, 606 N.Y.S.2d 443, 1994 N.Y. App. Div. LEXIS 56 (N.Y. Ct. App. 1994).

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Opinion

—Mercure, J.

Appeal from an order of the Supreme Court (Ellison, J.), entered October 6, 1992 in Che-mung County, which denied defendant’s motion for summary judgment dismissing the complaint.

Plaintiff commenced this action to recover for damages sustained when she fell on a sidewalk abutting property owned by defendant at 351 West Church Street in the City of Elmira, Chemung County. The complaint and bill of particulars allege defendant’s negligence in maintaining the sidewalk in a dangerous and unfit condition, in failing to make necessary repairs and in affirmatively creating a hazardous condition by improperly repairing the sidewalk. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Without rendering a written decision or giving any other indication of its reasoning, Supreme Court denied the motion. Defendant now appeals.

We reverse. Defendant’s competent and uncontroverted factual showing that she neither owned the sidewalk upon which plaintiff fell nor undertook any repairs thereof compelled the [824]*824conclusion that defendant was not liable for plaintiffs injuries as a matter of law (see, Brady v Maloney, 161 AD2d 879, 880; Appio v City of Albany, 144 AD2d 869; Kiernan v Thompson, 137 AD2d 957, 958). Accordingly, defendant’s motion should have been granted.

Cardona, P. J., Mikoll, Crew III and Yesawich Jr., JJ., concur. Ordered that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed.

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—Mercure, J.

Appeal from an order of the Supreme Court (Ellison, J.), entered October 6, 1992 in Che-mung County, which denied defendant’s motion for summary judgment dismissing the complaint.

Plaintiff commenced this action to recover for damages sustained when she fell on a sidewalk abutting property owned by defendant at 351 West Church Street in the City of Elmira, Chemung County. The complaint and bill of particulars allege defendant’s negligence in maintaining the sidewalk in a dangerous and unfit condition, in failing to make necessary repairs and in affirmatively creating a hazardous condition by improperly repairing the sidewalk. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Without rendering a written decision or giving any other indication of its reasoning, Supreme Court denied the motion. Defendant now appeals.

We reverse. Defendant’s competent and uncontroverted factual showing that she neither owned the sidewalk upon which plaintiff fell nor undertook any repairs thereof compelled the [824]*824conclusion that defendant was not liable for plaintiffs injuries as a matter of law (see, Brady v Maloney, 161 AD2d 879, 880; Appio v City of Albany, 144 AD2d 869; Kiernan v Thompson, 137 AD2d 957, 958). Accordingly, defendant’s motion should have been granted.

Cardona, P. J., Mikoll, Crew III and Yesawich Jr., JJ., concur. Ordered that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed.

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Bluebook (online)

200 A.D.2d 823, 606 N.Y.S.2d 443, 1994 N.Y. App. Div. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-rico-v-duncan-nyappdiv-1994.

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