| Logatto v City of New York |
| 2008 NY Slip Op 04843 [51 AD3d 984] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Richard Logatto, Respondent, v City of New York et al.,Respondents, and Brooklyn Baseball Company, LLC, Also Known as Brooklyn Cyclones,Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and DeborahA. Brenner of counsel), for defendant-respondent City of New York.
In an action to recover damages for personal injuries, the defendant Brooklyn BaseballCompany, LLC, also known as the Brooklyn Cyclones, appeals from an order of the SupremeCourt, Kings County (Solomon, J.), dated December 14, 2006, which denied that branch of itsmotion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint and all cross claimsinsofar as asserted against it, with leave to renew after discovery.
Ordered that the order is reversed, on the law, with costs, and that branch of the motion ofthe defendant Brooklyn Baseball Company, LLC, also known as the Brooklyn Cyclones, whichwas pursuant to CPLR 3211 (a) (1) to dismiss the complaint and all cross claims insofar asasserted against it is granted.
The plaintiff averred that he sustained personal injuries when he tripped and fell due to anallegedly defective condition in the parking lot adjacent to Keyspan Park in Brooklyn. In theensuing personal injury action, in lieu of answering, the defendant Brooklyn Baseball Company,LLC, also known as the Brooklyn Cyclones (hereinafter BBC), moved, inter alia, pursuant toCPLR 3211 (a) (1) to dismiss the complaint and all cross claims insofar as asserted against it.The Supreme Court denied that branch of the motion, and BBC appeals. We reverse.[*2]
Dismissal under CPLR 3211 (a) (1) is warranted wherethe "documentary evidence submitted conclusively establishes a defense to the asserted claims asa matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Sheridan v Town of Orangetown,21 AD3d 365, 365-366 [2005]; Fast Track Funding Corp. v Perrone, 19 AD3d 362 [2005]). In thiscase, among other things, BBC submitted a stadium lease between it and the defendant City ofNew York which conclusively demonstrated that BBC did not own, control, or lease, nor did ithave any responsibility to maintain or repair, the parking lot area where the plaintiff allegedlyfell. Accordingly, BBC conclusively demonstrated that it could not be liable for the allegedlydefective condition (see Schwalb vKulaski, 29 AD3d 563, 564 [2006]), and the Supreme Court should have granted thatbranch of its motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint and allcross claims insofar as asserted against it. Lifson, J.P., Miller, Dillon and Eng, JJ., concur.