| Comack v VBK Realty Assoc., Ltd. |
| 2008 NY Slip Op 01489 [48 AD3d 611] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Kathleen Comack et al., Appellants, v VBK RealtyAssociates, Ltd., et al., Respondents. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory Cascino of counsel), for respondents VBK Realty Associates, Ltd., Fred Von Bargen,and "Mary" Kelly. Stewart H. Friedman, Lake Success, N.Y. (Michael A. Dantuono of counsel), for respondentPeter Hausman. John P. Humphreys, Melville, N.Y. (Scott W. Driver of counsel), for respondent EdZelenski.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from somuch of an order of the Supreme Court, Nassau County (Martin, J.), entered July 7, 2006, asgranted the motion of the defendants VBK Realty Associates, Ltd., Fred Von Bargen, and "Mary"Kelly, and those branches of the separate cross motions of the defendants Peter Hausman and EdZelenski, which were for summary judgment dismissing the complaint insofar as asserted againsteach of them, and (2), as limited by their brief, from so much of an order of the same court datedNovember 27, 2006, as denied that branch of their motion which was for leave to renew, andupon, in effect, granting that branch of their motion which was for reargument, adhered to itsoriginal determination.[*2]
Ordered that the appeal from the order entered July 7,2006 is dismissed, as that order was superseded by so much of the order dated November 27,2006 as was made upon reargument; and it is further,
Ordered that the order dated November 27, 2006 is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The infant plaintiff was injured when he rode his bicycle off a 10-foot cliff, into which anonfunctioning well house was embedded. The plaintiff had been riding down a sloped roadwhen he went over a speed bump, which caused him to lose control of the bicycle and veer offthe road onto a grassy area. He then ran over a garden hose, which diverted the path of thebicycle toward the cliff, and rode over the flat, exposed top of the well house, landing on thebeach below. In its original order, the Supreme Court granted summary judgment to the movingdefendants. In an order dated November 27, 2006 the Supreme Court denied that branch of theplaintiffs' motion which was for leave to renew, and, upon, in effect, granting that branch of theplaintiffs' motion which was for reargument, adhered to its original determination dismissing thecomplaint insofar as asserted against the respondents. We affirm the order made uponreargument insofar as appealed from.
"To establish a prima facie case of negligence, a plaintiff must establish the existence of aduty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was aproximate cause of injury to the plaintiff . . . [L]iability for a dangerous conditionon property is generally predicated upon ownership, occupancy, control or special use of theproperty" (Nappi v Incorporated Vil. ofLynbrook, 19 AD3d 565, 566 [2005] [citations and internal quotation marks omitted]).The defendants Ed Zelenski and Peter Hausman established their prima facie entitlement tosummary judgment by showing that they did not owe the infant plaintiff a duty as they did notown, occupy, control, or make special use of the property upon which the infant plaintiff had hisaccident. The plaintiffs failed to raise a triable issue of fact in opposition.
The defendants VBK Realty Associates, Ltd., Fred Von Bargen, and "Mary" Kellyestablished their prima facie entitlement to summary judgment by demonstrating that the speedbump and the garden hose did not constitute dangerous or defective conditions (see Conroy vMarmon Enters., 253 AD2d 839 [1998]; Pilato v Diamond, 209 AD2d 393 [1994]),and that they had no duty to erect a fence or barrier at the edge of the cliff (see Cramer v County of Erie, 23 AD3d1145 [2005]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989];cf. Tulovic v Chase Manhattan Bank, 309 AD2d 923 [2003]). The conclusory assertionsof the plaintiffs' expert failed to raise a triable issue of fact in response (see generally Shannon v Village ofRockville Ctr., 39 AD3d 528, 529 [2007]).
The plaintiffs' remaining contentions are without merit. Spolzino, J.P., Ritter, Covello andDickerson, JJ., concur.