Hecht v. Town of New Castle

268 A.D.2d 504, 701 N.Y.S.2d 665, 2000 N.Y. App. Div. LEXIS 704

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants Muriel C. Dolce, Donn C. Dolce, and James Dolce appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Rosato, J.), entered March 22, 1999, as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, the complaint insofar as asserted against the appellants is dismissed, and the action against the remaining defendant is severed.

The defendants Muriel C. Dolce, Donn C. Dolce, and James Dolce (hereinafter the Dolce defendants) submitted proof in admissible form by a licensed land surveyor that the area where the plaintiff fell was within an easement granted by them to the defendant Town of New Castle (see, Village of Ellenville v Searles, 235 AD2d 693). In opposition, the plaintiff failed to submit any evidence in admissible form to establish the existence of a triable issue of fact as to the location of the plaintiff’s alleged fall.

The plaintiff’s opposition to the cross motion was also insufficient to establish that the Dolce defendants retained control over the premises or were contractually obligated to repair unsafe conditions. Accordingly, the Supreme Court should have granted the cross motion for summary judgment dismissing the complaint (see, Berado v City of Mount Vernon, 262 AD2d 513). Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.